When it was announced that Minnesota Attorney General Keith Ellison was taking over the case against Derek Chauvin in the killing of George Floyd, we immediately flagged the risk to a successful prosecution given Ellison’s political activist background.

Ellison promised that the state is “pursuing justice” and “pursuing truth” and “pursuing accountability” while asking for the community’s “trust.”

But can people trust Ellison? He has a history of political activism. Can they trust him to put aside his political wants to present the best case so George Floyd can get justice?

Only two days ago Ellison told rioters to take out their anger on the police instead of the National Guard.

Ellison is a former foot soldier for Louis Farrakhan, a regular speaker on the anti-Israel circuit, and posted a photo of himself holding The Antifa Handbook:

https://web.archive.org/web/20180104000356/https:/twitter.com/keithellison/status/948657342308147202

The Minneapolis Star-Tribune reports that Ellison will be increasing the charge against Chauvin to 2nd Degree Murder, and will be charging the other officers present with being accessories:

Minnesota Attorney General Keith Ellison answers questions about the investigation into the death of George Floyd, who died Monday while in the custody of Minneapolis police officers, during a news conference in St. Paul, Wednesday, May 27, 2020.

Attorney General Keith Ellison plans to elevate charges against the former Minneapolis police officer who knelt on George Floyd’s neck while adding charges of aiding and abetting murder against the other three officers at the scene, according to multiple law enforcement sources familiar with the case….

The other three officers at the scene — Tou Thao, J. Alexander Kueng and Thomas Lane — will also be charged with aiding and abetting second-degree murder, according to the sources, who spoke on conditions of anonymity. Chauvin was arrested last Friday and charged with third-degree murder and manslaughter.

Here are the elements of Second Degree Murder in Minnesota (emphasis added):

609.19 MURDER IN THE SECOND DEGREE.

Subdivision 1. Intentional murder; drive-by shootings. Whoever does either of the following is guilty of murder in the second degree and may be sentenced to imprisonment for not more than 40 years:

(1) causes the death of a human being with intent to effect the death of that person or another, but without premeditation; or

(2) causes the death of a human being while committing or attempting to commit a drive-by shooting in violation of section 609.66, subdivision 1e, under circumstances other than those described in section 609.185, paragraph (a), clause (3).

§Subd. 2. Unintentional murders. Whoever does either of the following is guilty of unintentional murder in the second degree and may be sentenced to imprisonment for not more than 40 years:

(1) 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 other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting; or

(2) causes the death of a human being without intent to effect the death of any person, while intentionally inflicting or attempting to inflict bodily harm upon the victim, when the perpetrator is restrained under an order for protection and the victim is a person designated to receive protection under the order. As used in this clause, “order for protection” includes an order for protection issued under chapter 518B; a harassment restraining order issued under section 609.748; a court order setting conditions of pretrial release or conditions of a criminal sentence or juvenile court disposition; a restraining order issued in a marriage dissolution action; and any order issued by a court of another state or of the United States that is similar to any of these orders.

So there either must be an intent to kill, but without premeditation, or if unintentional, a killing in the course of committing another felony (often referred to as felony murder).

Part of what may be motivating Ellison may be that the 3rd Degree Murder charge may have been legally deficient, for the reasons explained by this Legal Fellow at The Heritage Foundation:

So if Ellision didn’t up the charge to 2nd Degree murder, he may have been left with no viable murder charge, which would have large political implications given the riots.

But proving the 2nd Degree Murder charge will be more difficult. Was the knee pressure to the neck and restraint an intent to kill? And what was the separate felony being committed — the felony can’t be the killing alone.

Here is the Aiding and Abetting statute:

609.05 LIABILITY FOR CRIMES OF ANOTHER.

§Subdivision 1. Aiding, abetting; liability. A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.

Subd. 2. Expansive liability. A person liable under subdivision 1 is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by the person as a probable consequence of committing or attempting to commit the crime intended.

Subd. 3. Abandonment of criminal purpose. A person who intentionally aids, advises, hires, counsels, or conspires with or otherwise procures another to commit a crime and thereafter abandons that purpose and makes a reasonable effort to prevent the commission of the crime prior to its commission is not liable if the crime is thereafter committed.

Subd. 4. Circumstances of conviction. A person liable under this section may be charged with and convicted of the crime although the person who directly committed it has not been convicted, or has been convicted of some other degree of the crime or of some other crime based on the same act, or if the person is a juvenile who has not been found delinquent for the act.

Subd. 5. Definition. For purposes of this section, a crime also includes an act committed by a juvenile that would be a crime if committed by an adult.

The aiding and abettting charge requires proof that the other officers aided the crime. That suggests more than obeserving, actual participation. Which gets to the issue of whether the general restraint (put aside the knee) was a crime. And if the knee was the unlawful act, did they counsel or assist Chauvin in using his knee. This may not be as easy a chargte to prove as many people will expect.

We will update as more is learned about the new charges.

UPDATE – NEW CHARGES FILED

Second Degree Murder Complaint Against Derek Chauvin (pdf.)

Prosecution is going with Felony Murder for the Second Degree charge. The new complaint details that there was a struggle after Floyd initially was in the car, causing him to be pulled out.

This is the attempt to explain away the Medical Examiner’s initial findings (garbled text in original):

TheHennepinCountyMedical Examiner(M E)cond uctedMr. Floyd’sautopsyonMay26,2020. While the ME did not observe physical findings supportive of mechanical asphyxia, the ME opines that Mr. Floyd died from cardiopulmonary arrest while being restrained by law enforcement officers. The autopsy revealed that Mr. Floyd had arteriosclerotic and hypertensive heart disease, and toxicology testing revealed the presence of fentanyl and evidence of recent methamphetamine use. The ME 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. The ME listed the cause of death as “[c]ardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression,” and concluded the manner of death was homicide.

It’s not clear what the felony is that supports the Felony Murder charge. None is specified, but presumably it was the pressure from Chauvin’s knee. It needs researching, but that could present a problem legally because that also was the act alleged to be the cause of death. So it’s not a separate felony from the murder charge itself.

Having trouble downloading the aiding and abetting charges. The Tribune website must be overloaded, because the link to the documents doesn’t work. If someone finds working links, please paste in comment section.

UPDATE NO. 2 – FINAL AUTOPSY REPORT RELEASED

The Final Autopsy Report (pdf.)(full embed below) was just released.

 

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Derek Chauvin Second Degree Murder Charge by Legal Insurrection on Scribd

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George Floyd Final Autopsy Report by Legal Insurrection on Scribd

 

 
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