Why is Derek Chauvin being charged with third-degree murder rather than first? This is what prosecutors told me

'Prosecutors have different schools of thoughts: some think it’s best to only pursue charges that are going stick. Others say throw the book at the defendant and see what holds. I have to say emphatically that, in the criminal justice system, we’re constantly throwing charges against people of color that might not stick, but with law enforcement officers we’re more careful about that'

While Minneapolis chief of police Medaria Arradondo has been applauded for immediately firing the four officers involved in 46-year-old George Floyd’s death just over a week ago, questions about prosecutors’ choice to charge former officer Derek Chauvin with third-degree murder rather than a more serious charge continue to provoke outrage.

The complaint filed by prosecutors for the state of Minnesota against Chauvin could shed some light on the reasoning for those lighter charges. It reads more like a justification for the officer’s actions rather than a complaint to establish probable cause for Chauvin's arrest, in that it details Floyd’s size and his apparent attempts to resist. Only at the very end does it explicitly allege any wrongdoing by Chauvin, stating: “The defendant had his knee on Mr Floyd’s neck for 8 minutes and 46 seconds in total. Two minutes and 53 seconds of this was after Mr Floyd was non-responsive. Police are trained that this type of restraint with a subject in a prone position is inherently dangerous.”

While many states only have two degrees of murder in their criminal statutes, Minnesota has three. For first-degree murder, the statute requires that the person “causes the death of a human being with premeditation and with intent to effect the death of the person or of another”. For third-degree murder, however, the statute requires that the person “without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life”. Notably, first-degree murder carries a life sentence while third-degree murder carries a maximum 25-year jail sentence. The state abolished the death penalty in 1911.

The family of George Floyd and demonstrators in Minneapolis are demanding that the recently fired Chauvin be tried for first-degree murder, instead of third. And they’re right to want more – in the face of the filmed evidence, the charges Chauvin faces appear to be too little, too late; a thin coat of paint meant to briefly patch over the months, years, decades and centuries of systemic injustice and terrorism perpetrated against Black people in this country.

A second autopsy report also supports Floyd’s family's claims that a first-degree murder charge might be more appropriate. While an initial autopsy had concluded the Floyd died from heart failure, a second autopsy requested by the victim’s family concluded that he died of asphyxia from the pressure applied by Chauvin to Floyd’s neck and back for nearly nine minutes.

For homicide charges, intent or “state of mind” is always a critical element. I spoke with Professor Catherine Arcabascio, former Brooklyn assistant district attorney, co-founder of Florida Innocence Project and professor of criminal law at Nova Southeastern University’s Shepard Broad College of Law. She told me: “A prosecutor has both the discretion and a duty to pursue charges that can be established by the evidence they have. It depends on how the jurisdiction’s case law determines what premeditation is and how it’s defined … The real issue is whether the prosecutors thought they could prove that it was premeditated. That’s the difference between the ‘murder one’ and ‘murder three’ charge: in [murder] one there’s an intent to kill and in [murder] three there’s a depraved mind and reckless intent – that means the defendant knew and dismissed the risk that what they were doing could kill someone … It’s really a state of mind difference.”

I also reached out to Harold Pryor, Jr., a former prosecutor with the Broward County District Attorney’s office in south Florida. Pryor is running to be the state attorney (or district attorney) for Broward County in the upcoming August elections. If he wins, he will be the first Black man to ever hold the position. When I asked him about the incident, he told me, “It was extremely personal for me because I am a Black man who grew up in America and I have a two-year-old Black son. Every day my wife and I talk about how we’re going to keep him safe.”

I also asked Pryor about the prosecutor’s decision to charge Chauvin with third-degree murder. He said, “It is going to take a lot more lawyering and legal argument to get to first-degree murder. Are the elements there? Potentially. Can they argue for that? They do all the time. This officer had his knee on his neck for over eight minutes. He had ample opportunity to take it off. He [Floyd] was moaning, telling him [Chauvin] that he couldn’t breathe. And nearly three minutes went by where he was non-responsive. So, an argument could be made that the intent of the officer shifted during that long eight-minute period.”

“Prosecutors have different schools of thoughts: some think it’s best to only pursue charges that are going stick,” Pryor continued. “Others say throw the book at the defendant and see what holds. I have to say emphatically that, in the criminal justice system, we’re constantly throwing charges against people of color that might not stick, but with law enforcement officers we’re more careful about that.”

The grotesque video of Floyd’s death evoked a visceral response from the Black Lives Matter movement and allies across the country. His cries as he gasped for air evoked painful memories of the 2014 murder of Eric Garner who also repeatedly called out “I can’t breathe” as police held him in a chokehold until he died. This year, three killings by police officers in just four months occurred. The deaths of Ahmaud Arbery in February, Breonna Taylor in March, and George Floyd in May were, in the words of many protesters, the “third strike”.

So, in spite of the dangers of coming together to protest during a pandemic, demonstrators across the country are braving the risks to hold to account a system that has gone unchecked for far too long. Lawmakers need to listen up. We need laws cutting funding from policing programs and giving it to community organizations. We need to pass legislation to take guns away from everyone, including law enforcement officers. And we need prosecutors who aren’t afraid to press first-degree murder charges against police officers when the evidence supports it.

“I can’t breathe.” These three heartbreaking words and the subsequent death of Floyd shattered this country’s thinly painted veneer of justice, equality and democracy into a million tiny pieces. And as our president manically fans the flames of divisiveness and racial hatred with his tweets, America burns to the ground. It will take a massive legislative overhaul and a new administration in the White House to begin to put the pieces back together.