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