The Redundant Federal Charges Against Derek Chauvin
Last week, the Justice Department indicted former Minneapolis police officer Derek Chauvin for the same conduct — the killing of George Floyd — for which a Minnesota state jury convicted him of murder. Contrary to the wailing of a goodly portion of the defense bar, such a successive prosecution by a different sovereign is permitted by the Constitution, as SCOTUS reaffirmed in its 7-2 opinion two years ago in Gamble v. United States. But that does not end the inquiry: Although the prosecution is permitted, is it wise? Is it fair? Does it serve a distinct federal interest sufficient to be worth the cost and risks?
I have considerable doubts about all those things, as explained below. But I want to say one thing by way of preface. This should not become yet another “oh-the-government-is-so-bad” festival. The trouble here started with Chauvin, not the government. If he had shown more restraint, judgment and professional care, we wouldn’t be in this situation. The best way to avoid having to deal with the outcroppings of criminal behavior is to avoid the behavior to begin with. In Chauvin’s case, as in most, it’s just not that hard.
Having said that, I think DOJ’s decision to undertake a successive prosecution in this instance was incorrect. As a friend of mine has noted (on Facebook):
…the federal prosecution of the Minneapolis cops makes close to zero sense, unless…this is just my own opinion, and I would prefer to be wrong…it makes perfect sense…if you assume the Radical Anti-Cop Crowd is firmly embedded, and in charge, at the Harris-Biden-Obama Department of Justice.
The Minnesota federal prosecution tells every single cop in America – even a cop lucky enough to be working in a Red City in a Red County in a Red State – that she can end up in prison, for life, for doing her job properly. How do you think the Columbus, Ohio cop – the one who saved a girl from being stabbed to death – is feelin’ right about now? ValJar herself, and ValJar is surely a prominent shadow member of the administration, informed Americans that an imminent stabbing is no reason for a police officer to pull the trigger.
Indeed, multiple high profile Biden appointments tend to confirm my hypothesis. No need to defund the police when you can take many actions, and send many signals, aimed at thoroughly demoralizing cops, and very strongly encouraging them to resign, police weakly, and discourage new recruits.
My friend’s language is more florid than what I would use, but the points are valid. This sort of prosecution can bring about the effects of defunding the police (e.g., more murder, especially of black men) without the Administration’s ever having to say that de-policing is what it’s doing, or having to bear the political costs of such a disastrous (and unpopular) policy. In other words, it’s dishonest in addition to being dangerous.
Merrick Garland can do better, and should. Steve Haywood from PowerLine makes a similar observation in, “The Rising Body Count of Liberalism.”
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Garland appears to possess little rectitude. He is there to be pushed/molded in any direction the radicals in the Biden administration desire.
Glad to see you commenting here. Someone with your experience provides a very valuable perspective. And I hope you’ll be telling me that Larry Krasner is in trouble in the primary.
Can you explain, Bill, how “this sort of prosecution can bring about the effects of defunding the police”? It seem relatively similar to the Justice Department’s decision to indict Michael Slager for the killing of Walter Scott in South Carolina some years ago while a state prosecution was still on-going. Are you suggesting this administration (or any administration) should NEVER bring federal charges against local police or is there something else at work here? The post you quote speaks of an officer “doing her job properly,” but I do not surmise you are claiming Derek Chauvin did his job properly … or are you?
I am hopeful you might be eager to articulate limits on federal prosecution in this setting and many others, since I have long believed the feds prosecute way too many local matters. But I do not think of you as generally one to assail most federal prosecutions as excessive and unnecessary. But if you are inclined to look over federal excessiveness, I think you should be a lot more troubled by the federal prosecution of folks like William Wooden, who’s now serving 15+ years in federal prison for simply picking up a gun in his own home because he had some long-ago criminal history: https://www.scotusblog.com/case-files/cases/wooden-v-united-states/
Also, I also wonder if you think it ethical for any defense attorney to enter a not guilty plea for Chauvin in federal court. In addition to his crimes being on tape, he has already been convicted in state court for multiple counts of homicide BRD by a jury. You have suggested it is dishonest and even unethical for a defense attorney to enter a not guilty plea in some cases. Would these federal charges be one of those kinds of cases?
“Are you suggesting this administration (or any administration) should NEVER bring federal charges against local police…?”
I gave my answer to that when you were in about fourth grade, https://casetext.com/case/united-states-v-muscarella
“The post you quote speaks of an officer ‘doing her job properly,’ but I do not surmise you are claiming Derek Chauvin did his job properly … or are you?”
You might want to take a gander at my April 22 post, in which I say that Chauvin was properly convicted of murder, https://www.crimeandconsequences.blog/?p=3531#more-3531
“I am hopeful you might be eager to articulate limits on federal prosecution in this setting and many others, since I have long believed the feds prosecute way too many local matters.”
Everything is “local” in a sense, including McVeigh’s Oklahoma City bombing, but that does not answer the question whether federal involvement is or isn’t wise. It was there because McVeigh bombed the federal building. I’m not seeing a similarly clear federal interest here. And of course the big problem here is not the supposedly “local” nature of the crime but the redundancy of a federal prosecution after the state already has a murder conviction in hand for the same conduct. P.S. Did you similarly object to a seriatim federal prosecution after the Rodney King state prosecution? Maybe, but I strongly suspect not. I’ll be interested to know.
The question in Wooden has next to nothing to do with Chauvin or Chauvin’s procedural history. The question in Wooden is whether breaking into several different compartments of a storage shed were offenses “committed on occasions different from one another” for purposes of a sentencing enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). And just as Chauvin might have troubled himself to get his knee off Floyd’s neck after Floyd had quit resisting, Wooden might have troubled himself not to have a loaded gun after having been previously convicted of burglary. I might add that SCOTUS is not even considering the propriety of the federal PROSECUTION, but only of the sentencing enhancement.
“Also, I also wonder if you think it ethical for any defense attorney to enter a not guilty plea for Chauvin in federal court.”
Yes it was ethical, because there was a plausible, and some might say better than merely plausible, reason to believe that Chauvin’s acts were not the cause of death, and that the actual cause was Floyd’s prior ingestion of a lethal dose of fentanyl. The state jury’s judgment to the contrary is not final to say the least (no sentence much less, yet, an appeal). And as you and your allies say so often (and correctly, at least on some relatively quite rare occasions) even final judgments of conviction can be mistaken (just as final judgments of acquittal can be mistaken, see, e.g., OJ Simpson and Casey Anthony).
No one thinks the system is perfect. But its inevitable (because human) lack of perfection does not in any form or fashion excuse rank dishonesty, such as, for example, when an attorney gets up in court and says stuff he knows is either false or deliberately misleading. It would be helpful if someone with your reputation would pitch in on leading the charge to clean up the malodorous sleaze in our profession.
I continued to be believe that the false and deliberately misleading claims about the 2020 election by former Prez Trump is a much, much bigger threat to the rule of law and our constitutional democracy than any ethical work by any defense attorneys. And yet the GOP now seems to demand that embracing Trump’s false and deliberately misleading claims is fundamental to being part of that party. It would be helpful if someone with your connections to folks on that side of the aisle would pitch in on leading the charge to prevent the GOP from becoming based on a dangerous and corrosive big lie.
“I continued to be believe that the false and deliberately misleading claims about the 2020 election by former Prez Trump is a much, much bigger threat to the rule of law and our constitutional democracy than any ethical work by any defense attorneys.”
But (1) this is hardly to deny, and indeed is implicitly to admit, that unethical work by defense attorneys is a threat to the rule of law, and (2) the sleaze of the legal profession is a continuing problem every day in courtrooms across the country, and was for decades before anyone ever heard of DJT.
“And yet the GOP now seems to demand that embracing Trump’s false and deliberately misleading claims is fundamental to being part of that party.”
I would in some ways love to be a political blogger, but since I’m a guest blogger on a criminal law site, I think it behooves me to stick to criminal law topics. If I were unwisely to venture into politics, however, I would try to address major current issues such as the bombardment of Israel by terrorists, surging inflation reminiscent of the Carter years, and the re-emergence of gas lines in parts of the East Coast. Who is best suited to be No. 3 in the House leadership isn’t ringing my bell (and has zero to do with criminal law).
“It would be helpful if someone with your connections to folks on that side of the aisle would pitch in on leading the charge to prevent the GOP from becoming based on a dangerous and corrosive big lie.”
It would have been even more helpful if my, haha, “connections” were good enough to get me even five minutes of floor time, but alas! On the other hand, since Bill Pryor didn’t get it either, I feel like I’m in excellent company.
To try to return to something like the topic: Deceit and the acceptance of deceit are big problems in the legal profession, and particularly so in criminal defense. Lack of candor and intentionally misleading advocacy are all over the place, day in and day out, and professional and academic leaders should step up to demand improvement.
I would welcome your accounting of whether you think these problems have gotten worse in recent decades in the legal profession. To the extent they have, I would be inclined to point to terrible examples from our Presidents, particularly Clinton and Trump, as contributing to the problem. Clinton was a lawyer, so I am inclined to blame him more, but I am troubled by how many lawyers on the GOP side are supporting the particularly damaging and persistent lies of Trump.
The trouble didn’t start with Chauvin. It started with BLM, the city council and George Floyd. I expect Chauvin will eventually be exonerated.
I sense Bill generally does not like when defenders of convicted criminals blame society, government and crime victims for criminal activity rather than the convicted individual, but maybe here he does think everyone but the convicted murderer is responsible for the trouble..
“I sense Bill generally does not like when defenders of convicted criminals blame society, government and crime victims for criminal activity rather than the convicted individual…”
Well you nailed that one.
“…but maybe here he does think everyone but the convicted murderer is responsible for the trouble.”
Only I said a little more than two weeks ago, “There were two big problems Chauvin could not overcome, one legal and one factual. The factual problem was that he kept his knee on Floyd’s neck well past the time resistance had stopped. To the jury, that understandably looked malicious and cruel, and thus adequately (if not overwhelmingly) supplied the mens rea component for a conviction on second degree murder.”
So I think your charging me with hypocrisy falls a bit flat. Still, hypocrisy is a most revealing topic here, you bet. Could you tell me where all the defense bar gnashing of teeth was in the Chauvin case about how we must be most insistent on due process and civil liberties when the defendant is most despised? I swear, I didn’t hear that even one little bit. Could you link a site where that got said about Chauvin? Or is that just for child rapists??
In a sense, the trouble started when Adam munched on that apple. But I don’t want to dismiss your concern, with which I have no little sympathy.
In a sense, the trouble started when Floyd tried to pass a counterfeit bill. It continued when the shopkeeper gave him a chance to pay honestly, and he refused. It continued more when he refused to get out of the car when the cops told him to. It continued yet more when he forcibly resisted. And it was complicated by Floyd’s swallowing the highly dangerous and highly illegal drug he had on him that he didn’t want the cops to find.
So yes, there was plenty going on as prologue. But the key facts for purposes of the murder charge were within Chauvin’s control. He was justified in using force, but he went beyond the amount the situation warranted, and the excess was a contributing cause of Floyd’s death. Under Minnesota statutory law, that’s enough.
Chauvin might get a new trial on grounds either of juror misconduct or the ugly and menacing mob atmosphere surrounding the trial (although I think his chances are low). But even if he does, he will not be exonerated. His conduct was not what responsible citizens want or expect from their police.
Bill, I do not think you have explained at all, as I asked initially, your claim that “this sort of prosecution can bring about the effects of defunding the police”? As I mentioned, it seems relatively similar to the Justice Department’s decision to indict Michael Slager for the killing of Walter Scott in South Carolina some years ago while state prosecution was still on-going. I am also unclear if you are also saying that you thought federal prosecution of the cops who beat Rodney King was not fair or wise.. I am just trying to better understand when and why you think federal prosecution is unwise and unfair in this setting and others. I brought up the Wooden case because I think anyone with a robust view of the Second Amendment rights might see Wooden’s federal prosecution and long sentence much more likely to be a burden on constitutional rights than the Chauvin indictment seems likely to lead to the defunding of the police.
Also, of great importance, the federal indictment of Chauvin is based on a federal crime, 18 USC 242, that criminalizes “Deprivation of rights under color of law.” Even if there was a viable defense that Chauvin did not cause Floyd’s death, your own comments about Chauvin’s use of force notes he “went beyond the amount the situation warranted.” So, again, I wonder if you think a defense attorney has an honest defense, especially after the state conviction, as to whether Chauvin deprived rights under color of law.
I do not mean to belabor these points, but I do mean to highlight that for certain defendants your seem righteously concerned about federal prosecutorial excessiveness and due process and civil liberties and the important role of defense attorneys in our adversarial system. I am just eager to urge you to extend these well-founded concerns to all defendants (since pressures for prosecutorial excessiveness and risks of juror misconduct and mob atmospheres and less than effective defense work are not unique to this setting).