What the Prosecution of Chauvin’s Fellow Officers Could Look Like

Laws that progressives want to see reformed could make convictions more likely, though it will be a challenge.

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After initially charging only Officer Derek Chauvin, Minnesota prosecutors subsequently added charges against the other three officers present at the scene of George Floyd’s death. Officers Thomas Lane, J. Alexander Kueng, and Tou Thao are charged as accomplices to second-degree felony murder and second-degree manslaughter. For complicated reasons, unlike Chauvin they are not charged with third-degree murder, though that charge could still be added later. 

Given their more limited roles in the offense, the charges against the other three officers will be harder to prove than those against Chauvin. And the charges, while legally valid under Minnesota law, rely on some fringe doctrines of accomplice liability. These doctrines, which have long been criticized by progressive reformers, create expansive strict liability for minor participants in group crimes. Even with those doctrines, the charges against Lane, Kueng, and Thao are at the outer edge of permissible enforcement of accomplice liability. I previously described the charges against Chauvin and wrote about the challenges of prosecuting him. As a matter of trial strategy, the case against the other three will be even more complicated because most of the jurors’ outrage will be directed at Chauvin.

It should be noted that the other officers may never go to trial. These charges could be a precursor to a plea deal, whereby at least one of the officers will agree to reduced charges in exchange for testifying against Chauvin. It is already clear that the officers here will not hide behind the blue wall of silence: At a preliminary hearing last Friday, attorneys for Lane and Kueng made clear that their defense will involve placing all the blame on Chauvin. (Thao, by contrast, may stick by his partner, at least for the moment.) Lane and Kueng might be willing to reach a deal, perhaps for a reduced charge of manslaughter or assault. 

The vast majority of American criminal cases end in plea bargains, but this isn’t a normal case. It’s hard to negotiate compromises when the whole world is watching. Attorney General Keith Ellison is under a great deal of political pressure to throw the book at all these officers. Even a negotiated reduction to manslaughter would seem far too lenient to many activists. On the other side, the officers are probably being advised by their attorneys that they have a good chance of winning at trial. They may also be reluctant to admit to a crime that they honestly believe they did not commit. 

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  1. Avatar photo
    Victor Clairmont

    Great breakdown with nuance. I feel like Keith Ellison shouldn't touch this with a ten foot poll and recuse himself as AG. His failed bid for the head of the DNC, plus his allegedly accuse of abusing a former girlfriend while running for AG, plus his stance being friendly to Antifa, and his stance on the Nation of Islam, I would think he would pass it off to someone else. Hand it off to a deputy or someone with real integrity that will absolutely (like Michael Horowitz Inspector General pursuing the FBI cases of the Mueller Report) pursue the truth and leave no stone unturned and that everyone would trust. Dunno if they have anyone like that though in Minnesota, I am assuming there's got to be one person right?

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  2. Avatar photo
    Bill Nelson

    Consider the effect on the life of the jurors who vote to acquit.

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    1. Avatar photo
      Victor Clairmont

      Reminds me of the OJ jurors. If the gloves don't fit you must acquit.

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    Sonofasailor35

    Very good article, very informative. In my state, separate trials are also favored where it is likely there will be finger-pointing by the defendants at each other. Some judges avoid multiple trials by seating multiple juries, one for each defendant (although here each of the “accomplice” officers might be satisfied with one jury separate from Chauvin’s). Then, all juries hear the “common” evidence against all defendants, but each jury does not hear evidence that applies only to other defendants. It can get quite complicated for a prosecutor, who must take separate notes and not mix them up, being careful not to mention evidence before a jury that has not heard it. Three is the max number of juries I have had in my jurisdiction. One judge tried to “go for the record” and seated four juries, but was disappointed when one of the defendants then pled guilty.

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  4. Scroop Moth

    On March 5, Alabama executed Nathaniel Woods for accomplice murder of three police officers because, the governor said, no argument was made during his trial that he had "tried to stop the gunman from committing these heinous acts."

    https://www.npr.org/2020/03/05/812752390/alabama-executes-man-convicted-as-accomplice-in-slaying-of-police-officers

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    1. Ted Sampsell-Jones

      It's true the governor said that, but that wasn't the legal basis for his conviction. Alabama's principles of accomplice liability are similar to most other states. Mere presence alone isn't enough, there must be some act of assistance, but willing presence in some circumstances can itself be a kind of assistance (like standing guard, etc.).

      The evidence against him is described in detail at 13 So. 3d 1, 26-32. The court concluded: "The State presented evidence about Woods's actions before, during, and after the crime from which the jury could have determined that Woods was an active participant in the murders."

      I'm not saying I agree with that result, much less the imposition of the death penalty. But the theory there was that he was an active accomplice.

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      1. Scroop Moth

        Thanks

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  5. David Balmer

    Excellent analysis, professor.

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  6. P Satter

    One aspect emphasized to me by a LE relative is that rookies on only their third and fourth days with a training officer were not his peers; they would be very much his subordinates. That he was not only kept on in light of complaints against him, but made a training officer over brand new hires is unfortunate.

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  7. Avatar photo
    Jonathan Nebel

    This is a really insightful article. I think you are exactly right that the short-term desire for retribution might be undermining the long-term goal of criminal justice reform.

    I have one question: From this article and the other you wrote, it seems that Minnesota's legal system is full of idiosyncrasies not found in other jurisdictions. Is there a reason for this? Or, does each state have its own oddities, but Minnesota's oddities are coming to the fore in this case?

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    1. Ted Sampsell-Jones

      I'd say each state has its own oddities. Minnesota's oddities just happen to be central to this case. We are real outlier when it comes to imposing strict liability for aggravated/additional offenses, and that is central to the prosecution in this case.

      The reasons for this are partly historical accident. We drafted our "modern" criminal code relatively early, before the Model Penal Code gained so much influence, so we are left with a lot of common-law junk.

      There is also an element of parochialism that comes with state-specific legal practice. Like my guess is that if you asked most judges or legislators here: "Why does MN still retain assault-felony-murder even though nearly every other jurisdiction has abandoned it?" -- most of them would be surprised to hear we are different. (In fact, most would have no idea what you were talking about.)

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