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.
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.
A mutually acceptable plea bargain will be hard to come by. We may be in for a messy trial—or trials—where jurors have to try to assess relative blame in accordance with the intricacies of accomplice liability.
Accomplice liability is responsibility for helping someone else commit a crime—that is, for “aiding and abetting” a crime. Imagine two guys rob a bank together, with one going in and sticking up the teller while the other waits in the getaway car. Both are guilty of bank robbery. The guy who goes inside with the gun is guilty as the “principal,” or primary actor, while the getaway driver is guilty as an accomplice. Importantly, and somewhat counterintuitively, both can be charged with the same crimes and given the same punishment. In for a penny, in for a pound.
Stated simply, accomplice liability has an act requirement and an intent requirement. The accomplice must provide some act of assistance and also intend to assist the crime.
As for the act requirement, in general the failure to act is not a crime. As the Minnesota Supreme Court has stated, mere presence at the scene of a crime and passive acquiescence are insufficient. Some have suggested officers have a duty to protect citizens, and so officers should be held to a higher standard—they should be guilty for failing to stop a crime. That may be true as a moral matter, but it is not a legal principle that has been adopted in Minnesota. While the Minneapolis Police Department does have a duty-to-intervene policy, a violation of that internal policy is not in and of itself a crime. There is no Minnesota statute or case stating that officers can be liable as accomplices merely for failing to intervene in another person’s crime. Some affirmative act of assistance is required.
In general in American law, any act of assistance, no matter how small, is sufficient. The bar in Minnesota is arguably somewhat higher. In a leading case called Ulvinen, a mother repeatedly encouraged her son to kill his wife, then stood guard while he dismembered the body, then helped him fabricate an alibi to police. The jury convicted her of being an accomplice to murder, but the Minnesota Supreme Court reversed the conviction. It held that accomplice liability requires a “high level of activity” on the part of the accomplice, something that makes it possible for the principal to commit a crime he couldn’t have completed on his own. On the other hand, the same court has also stated in other cases that presence combined with intent is sufficient—which, if true, means there’s no act requirement at all. The law here is a bit of a mess since our courts haven’t been entirely consistent, and our standard jury instructions arguably do not state the law correctly.
Turning to the intent requirement, the jury will be instructed that, in order to find the other three officers guilty, it will have to find that they “knew Chauvin was going to commit or was committing a crime.” It will also have to find that they “intended that their presence or actions aid the commission of a crime.”
Knowledge alone does not establish intent. If a gas station attendant sells gas to the bank robbers on their way to the crime, she is not guilty of being an accomplice—even if, for example, she overhears them talking about their plans and knows what they’re up to. An accomplice must also have intent, or a stake in the venture, as the United States Supreme Court has suggested. In addition to knowing about the crime, an accomplice must also want the crime to succeed.
Starting with these basic principles of accomplice liability, in order to find someone guilty of murder, a jury would have to find both that the accomplice provided some act of assistance and also that he wanted the victim to die. If those basic principles were the whole story, charging the other officers as accomplices to murder would not be possible.
The basic principles, however, are not the whole story. Minnesota has supplemented the basics with some doctrines of expansive liability that make it easier to convict accomplices of greater offenses.
First, Minnesota has adopted by statute the natural and probable consequences doctrine. Under that doctrine, if an accomplice intentionally aids one crime, he can also be held liable for any additional crimes that flow from that, so long as they are reasonably foreseeable. Back to our bank robbers—if the principal inside the bank cracks a guard in the head with the butt of his gun, both he and the getaway driver can be convicted of assault. The getaway driver aided and abetted the robbery, and although he didn’t intend to aid an assault, he can be found guilty anyway because it was a foreseeable consequence of the first crime.
Under that principle, the other three officers could be liable if they aided Chauvin in committing a lesser offense, and then he committed some additional offense that was a reasonably foreseeable result of the initial offense.
Second, the felony murder doctrine, which I discussed last week, itself creates expansive liability. If the other officers either committed or aided an underlying felony—here an assault—they can be found guilty of murder if a death, even an unintentional death, results from that felony. In Minnesota, moreover, because felony assault it itself a partial strict liability offense, felony murder does not even require intent to commit a felony. An intent to commit or aid a misdemeanor assault is sufficient. Minnesota may be the only American jurisdiction where a simple misdemeanor assault can get bootstrapped all the way up to murder.
The interaction between these two principles of expansive liability is complicated. The bottom line will be that in order to find the other three officers guilty as charged, the jury will have to find that they intended to aid or commit an assault, and that Floyd’s death was a foreseeable consequence of their initial crime. These doctrines of expansive liability essentially relieve the prosecution from proving the usual intent required for murder.
Note again that these doctrines of expansive liability are controversial and have been rejected by some jurisdictions. They were disavowed by the highly influential Model Penal Code, drafted in the mid-20th century by the American Law Institute. In Minnesota law, however, these doctrines remain firmly embedded. Minnesota generally applies something close to strict liability for aggravated and additional offenses. If you shove someone and he trips and cracks his skull, you can be liable for aggravated assault even if you didn’t intend that degree of injury. If you are selling drugs within a few hundred feet of a school, you can be liable for an aggravated drug offense even if you had no idea a school was nearby. Minnesota criminal law has taken the “in for a penny, in for a pound” principle to a rather extreme degree. Collectively, these doctrines allow prosecutors to obtain long sentences for relatively minor crimes.
The doctrines of expansive liability are the foundation of the prosecution against the other three officers. An irony of this case is that the expansive liability doctrines, which progressive lawyers and academics have sought to reform for years, are now necessary to a high-profile prosecution that is demanded by progressive activists and pursued by a progressive attorney general. For better or worse—worse, I’d say—they will become even more deeply entrenched in Minnesota law as a result.
Even employing those fringe doctrines, a successful prosecution here will not be simple. How this will all play out at trial will depend a great deal on whether the defendants are tried together or separately. Whether to seek joint or separate trials will be one of the most important strategic decisions faced by the parties.
In many American jurisdictions, joint trials are the norm in multi-defendant cases. Federal law, for example, mandates a strong presumption of joint trials. Minnesota, by contrast, has rejected that approach. Our rules of criminal procedure differ from the federal rules, and our Supreme Court has stated: “Minnesota, unlike the federal system, has a historical preference for separate trials.” Once again the case law is somewhat inconsistent, but in general, separate trials are favored where defendants present antagonistic defense—that is, where each defendant in a case tries to blame the others. That looks to be exactly what will happen in this case.
A joint trial could be supremely chaotic. There would be five parties present and five competing theories of the case. Imagine four defense attorneys, rather than one, cross-examining the state’s medical expert. A joint trial would also involve a lot of confusing instructions to the jury, such as: “Members of the jury, you are about to hear evidence that you may only consider as to one defendant. You must ignore it as to the other defendants.” More generally, given the nature of the antagonistic defenses, the trial would play out something like a circular firing squad. A jury might hate them all and convict all four. Or, given all the competing accusations, it might not be sure of anything beyond a reasonable doubt and therefore acquit them all. Joint trials are messy.
Separate trials could be cleaner, but might make an acquittal more likely, especially for the three officers charged as accomplices. It is easier to blame someone who isn’t in the room. If the other three officers are tried separately from Chauvin, they will be able to attack him even more relentlessly. He won’t be there to defend himself, and the prosecution will be put in the somewhat awkward position of saying “It’s not all Chauvin’s fault.”
Regardless of whether the defendants are tried jointly or separately, the jury (or juries) will be told to consider each defendant separately. No defendant’s guilt is legally dependent on any other’s. Technically, that means that a jury could acquit Chauvin but convict one or more of the others. As a practical matter, though, that is extraordinarily unlikely. Formal legal rules aside, jurors use common sense, and they care about apportioning blame. Even at a separate trial for the accused accomplices, Chauvin will remain the center of attention, as the other officers try to paint him as a villain who acted alone.
My guess is that at least two of the defendants, Kueng and Lane, will move for separate trials. The prosecution could oppose that motion, but doing so risks creating a substantial issue for appeal if they were convicted at a joint trial. The strategic calculus is complicated all around.
The other three officers will have some plausible defenses to the charges. They will argue that although they were present and perhaps acquiesced in Chauvin’s conduct, they didn’t provide a sufficient level of assistance to be convicted as accomplices. They will also argue that they lacked the requisite intent. They’ll argue that they didn’t intend to assault Floyd, much less kill him.
Remember, even under Minnesota’s expansive liability doctrines, the other officers must at least have intended to commit some initial predicate crime. The prosecution will still have to prove that each of them—as individuals—intended to aid or commit a criminal assault. Given that police officers are allowed to use some force to effectuate an arrest, that will not be easy to show.
Legal doctrines aside, their defense will boil down to a simple proposition: Blame Chauvin. The video evidence will loom large here. Just as that evidence will be the most powerful evidence to convict Chauvin, it could also be the most powerful evidence to acquit the others. The video shows Chauvin kneeling on Floyd’s neck, with a look of (at best) indifference on his face the whole time, even as Floyd begged for life and then died. In the video footage, Lane and Kueng can be seen assisting in the restraint by kneeling on Floyd’s back, but their conduct at least appears less egregious. They are also less visible, so it will be harder for the jury to assess what they were doing or thinking.
Especially if tried separately, I’d expect the accused accomplice officers to take the stand in their own defense. They will express deep remorse for Floyd’s death. They will express outrage at Chauvin’s conduct, but they will testify that in the heat of the moment, they didn’t know what to do to stop it. That is particularly true for the two rookie cops, who were operating under MPD’s famously regimented hierarchy. Lane, moreover, will be able to testify that he did try to stop it, repeatedly asking Chauvin to get off Floyd and roll him on his side, but Chauvin refused. Those statements are audibly recorded. Kueng’s attorney has also stated that he tried to intervene, unsuccessfully. Both of them will testify that they didn’t intend to commit a crime, any crime, including the lesser crime of assault that can be bootstrapped up to murder in Minnesota.
Of course they should have done more. They should have pulled Chauvin off, or at least insisted more forcefully. But while their failure to do so might make them bad cops and bad people, it doesn’t make them accomplices to murder.
The officers will also have the option of calling character witnesses. And make no mistake, whatever you think of their conduct that day, these other officers are somewhat sympathetic characters. Officer Kueng, for example, is a young African-American man who was only on his third shift as a Minneapolis officer. He is a youth sports coach. Lane does volunteer work mentoring Somali kids. They don’t exactly fit the profile of jaded, hardened cops bent on oppressing citizens of color.
I wrote last week that the charges against Chauvin, while not a certainty, are likely to result in a homicide conviction. Convictions of the other three officers are less likely, due to their apparently limited role in the offense and the nature of the video evidence. Personally, I am also less sure that the charges against the other three officers are just.
The desire for retribution is a powerful and deep-seated human emotion. Crime causes immeasurable pain, and the victims of crime—as well as their families and friends and allies—want punishment. Often they want the most severe punishment possible. You can see that dynamic playing out here. The initial charges against Chauvin were criticized as too weak, so the lead prosecutor was replaced, and the new lead prosecutor added new charges against Chauvin and the other three. Many have said these new charges are still not enough, and have encouraged even more severe charges, including first-degree murder (even though such a charge would be highly dubious under existing Minnesota law).
The emotions underlying the calls for justice are more than understandable. Witnessing a horrible incident like George Floyd’s death makes us want someone to be punished. But in a system devoted to the rule of law, the desire for retribution must be checked. Just because we want to convict these guys doesn’t mean it’s a good idea to abandon existing limitations on first-degree murder or accomplice liability—any more than it would be a good idea to abandon the beyond a reasonable doubt standard. Don’t forget that the excessive desire for retribution is part of what drove the American criminal justice system for the last half-century. The great American crime wave of the ‘80s and ‘90s led to a torrent of retributive outrage and bipartisan demands for stricter criminal justice policies. (See, e.g., Biden, Joseph.) That political climate caused a one-way ratchet effect of more criminal laws, broader definitions of crimes, expansive liability doctrines, and increased sentences.
That is what got us 2 million people in prison, and they are disproportionately people of color.
Criminal justice reform is necessary, and that should mean more than reforming or defunding the police. It should mean reforming the substantive criminal law itself. It should mean reducing sentences rather than clamoring for ever-more prison time. It should mean narrowing definitions of some offenses even if that means some bad people get off easy occasionally. And it should mean abolishing fringy doctrines of expansive liability—such as Minnesota’s assault-felony-murder doctrine. In short, to achieve real criminal justice reform, the ratchet needs to turn the other direction. This prosecution won’t help.
The implicit message from progressives now is: “What comes around goes around. Excessive prosecutorial tactics have been used against poor minority people in the past, and now with progressives like Keith Ellison in power, we can use those same tactics against instruments of oppression.” I’m not sure that will work out well in the long run. I’d prefer not to use aggressive prosecutorial tactics against anyone. An eye for an eye leaves everyone blind.
The case against the other officers is somewhat marginal, both on the law and the facts. Whatever the jury decides, I hope we all remember that the cause of criminal justice reform is more important than the result in this case. Locking a few more humans in cages will not create the systematic reform we need. Justice for George should mean much more than just sending these four cops to prison.
Photograph of Keith Ellison by Scott Olson/Getty Images.