Jury selection is the most important part of the historic criminal case involving former Minneapolis police officer Derek Chauvin. The second most important part could very well be the instructions provided to those jurors.
When Hennepin County District Court Judge Peter Cahill reinstated the third-degree murder charge for Derek Chauvin on March 11, the trial landscape shifted in favor of the prosecution. A third-degree charge doesn’t require “intent to effect the death of any person,” or even an “intent to inflict bodily harm,” just an “evincing of a depraved mind, without regard for human life.”
Before that charge was reinstated, the fate of any second-degree felony murder conviction rested almost entirely on which jury instructions the judge chose to use.
Second-degree felony murder requires proof that Chauvin caused George Floyd’s death while committing or attempting to commit a felony. Felony assault in the third degree requires “an act done with intent to cause fear in another of immediate bodily harm or death.”
Prosecutors want jury instructions that increase the likelihood of a guilty verdict. Instead of asking jurors to get inside Chauvin’s mind; they want to focus on his actions.
The prosecution’s proposed instruction reads as follows: “Intentional infliction of bodily harm’ means that the defendant intentionally applied force to George Floyd without George Floyd’s consent, and that this physical act resulted in bodily harm. This requires proof that the defendant’s application of force to George Floyd was not accidental. It does not require proof… that the defendant knew he would cause bodily harm or violate the law.” Chauvin intended to apply the force of his knee on George Floyd’s neck; the force caused Floyd to suffer bodily harm.
Defense attorneys want something entirely different: jurors who consider their client’s state of mind. According to their proposed jury instructions, they want to add that “a ‘special danger to human life’ must have been caused by the underlying felony, in turn determined by the circumstances under which the felony was committed.” They define “intentional” to mean “the actor either has a purpose to do the thing or cause the result specified, or believes that the act performed by the actor, if successful, will cause that result.”
The defense knows that if the jury is asked to evaluate Chauvin’ state of mind and whether he had the intent to commit a crime, it will be harder to achieve a unanimous verdict.
How jurors are instructed on police use of force will also be important. The prosecution wants Chauvin’s conduct to be evaluated using an “objective reasonableness” standard: If force isn’t necessary, it isn’t reasonable. Hence, this proposed instruction from the prosecution: “Any use of force beyond … [what is necessary] is not reasonable…. You must decide whether the officer’s actions were objectively reasonable based on the totality of the facts and circumstances confronting the officer, without regard to his own state of mind, intention, or motivation.”
The defense wants the jury to hear an instruction used in Section 1983 excessive force cases: “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer at the moment he is on the scene, rather than with the 20/20 vision of hindsight.” It also wants to emphasize Chauvin’s subjective state of mind: “[I]n considering the reasonableness of the use of force, the jury may consider whether the force was applied in good faith by the defendant.”
Not surprisingly, the government argues that these instructions are inappropriate considering the facts of this case.
Without clear instructions or a third-degree charge, the jury would likely favor a second-degree manslaughter conviction, which requires mere proof of a “person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.”
The third-degree charge provides another vehicle for finding Chauvin guilty. Prosecutors must prove that he acted with a “depraved mind, without regard for human life.” Neither side has submitted a definition for “depraved mind,” and where a phrase is not defined the jury “should apply the common, ordinary meaning of that word or phrase.”
The prosecution may assert that someone who acts without regard for human life has a depraved mind. The defense will likely introduce a standard definition for “depravity of mind”: “It consists of evil, corrupt and perverted intent which is devoid of regard for human dignity, and which is indifferent to human life. It is a state of mind outrageously horrible or inhuman.”
The bottom line is that Chauvin is likely to be found guilty of something, but whether it is one of the more serious murder charges, with sentences of 25 years or 40 years, could depend on jury instructions. The closer those instructions adhere to the “objective reasonableness” standard, the higher the likelihood of a guilty verdict on one of the murder charges.
V. James DeSimone is a civil rights attorney at V. James DeSimone Law of Marina del Rey, Calif.