June 08, 2020

Minnesota AG Keith Ellison May Have Just Screwed Up Case Against George Floyd Cops

Floyd almost certainly died of a heart attack brought on by his strenuous resistance to arrest. "I can't breathe" is a recognized symptom of a heart attack. There will at least be reasonable doubt about the cause of death so the cop could well skate.

And the knee on the neck procedure is recognized as a legitimate means of restraining a very active criminal so even that will probably not lead to successful charges

I’m no legal expert, but I wondered to myself if Keith Ellison hadn’t overcharged the cop who killed George Floyd. Now there’s someone much smarter than I who agrees.

Andy McCarthy, who writes for National Review, is a former federal prosecutor and has been a trusted guest on my radio show for the better part of 20 years. He believes Ellison might have just colossally screwed up his case against the cops. My words, not his. McCarthy called Ellison’s amended charges “dangerously flawed.”

Overcharging is tantamount to over-promising. It’s perceived as overly punitive and less thoughtful in some cases. Sure, everyone’s angry. Sure, Floyd’s death appears to be criminal. But you’ve got to be able to prove what you charge.

Ellison may have just Peter Principled himself out of this prosecution.

Police officer Derek Chauvin took a knee on the neck of George Floyd for nearly nine minutes. The hold on his neck, not part of any police training, killed Floyd. Floyd, who had drugs in his system and a heart condition, panicked and couldn’t breathe.

Yet Keith Ellison is still pursuing a murder conviction.  Statutorily, it's simply not murder.

Initially, the local district attorney took a long look at the evidence and charged Chauvin with third-degree murder, alleging Chauvin had depraved indifference to human life, but didn’t conspire to kill Floyd.

Then the case was kicked upstairs to virulently political Leftist Keith Ellison, part of the George Soros-funded attorney general project.  Ellison added a second-degree felony murder charge to the other less severe charges that McCarthy believes he won’t be able to prove. He’s ladled on aiding and abetting charges against the other officers on the second-degree murder charge and manslaughter.

McCarthy points out that the new charges don’t quite add up. Tou Thao, J. Alexander Kueng, and Thomas Lane are charged with aiding and abetting both second-degree murder (the new charge against Chauvin) and manslaughter. Weirdly, under the circumstances, the three are not charged with the “depraved indifference” murder count; nor are they accused of committing manslaughter as principals — they are charged only as aiders and abettors, a theory that does not jibe with a negligence charge such as second-degree manslaughter (which is negligent homicide under Minnesota law).

He explains that defense attorneys will poke big holes in Ellison’s case:

By definition, a bad outcome caused by negligence does not happen intentionally; it happens because of carelessness that created a risk the actor did not foresee but should have.

See the problem? Aiding and abetting requires proof that the accomplice understood the principal’s conscious criminal objective. In a negligence case, the bad thing that happens is unintentional — i.e., it is nobody’s conscious objective. That’s why the prosecutors’ theory is, to my mind, a non sequitur.

Do not misunderstand. I think it would make sense to charge the accomplices with manslaughter as principals, rather than as aiders and abettors.

But here’s what might be the most diabolical part of Ellison’s move and maybe the one he wanted all along.

 By contrast, the new “felony murder” count, spearheaded by Keith Ellison, the radical leftist state attorney general, puts police on notice that they can be charged with a crime — felony assault — for doing their job, which routinely involves physically restraining suspects who resist lawful commands.

McCarthy talked about it in his podcast and in a piece in NRO.

Do you doubt that Keith Ellison would want to criminalize police work? Neither do I. Here’s a man who believes national borders are an “injustice.”

The unanswered question, however, is what would be the point of prosecuting charges that may not hold up?

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