By Alper Ali Riza
We know that black lives don’t matter in the US but to see a black guy asphyxiated in cold blood in a knee-on-neck lock perpetrated by a police officer with two other officers holding him down shocked the whole world, even a world inured by the effects of the coronavirus pandemic was so shocked the story overshadowed the pestilence for a week.
The killing did not happen in some totalitarian police state but in Minneapolis in the US state of Minnesota. But to be fair, all the police officers involved have now been charged and are in custody. Derek Chauvin is charged with the murder of George Floyd: two charges of second degree and one of third-degree murder. Thomas Lane, J. Alexander Kueng, and Tou Thao all face two charges of aiding and abetting second-degree murder and aiding and abetting second-degree manslaughter. Two of the officers helped keep Floyd pinned to the ground and the third is seen keeping concerned bystanders from helping him.
A member of the public videoed the whole incident and then let the world know what happened. The footage shows concerned members of the public remonstrating with the officers. They were shooed away by the third officer who saw and heard what we can see and hear from the video clip.
The evidence against the officers is damning. Apparently, they were wearing body cameras that will show blow by blow what happened from the moment the arrest of Floyd began to when he was placed in an ambulance. From what the world has seen, it should be curtains for the officers.
A white officer is seen kneeling on the neck of George Floyd, handcuffed and helpless, for eight minutes and 46 seconds. “I can’t breathe man please, please,” he pleads repeatedly for his life within earshot of all the officers but they all carry on regardless. “I can’t breathe,” he cries as he writhes and then falls silent and motionless until the ambulance arrives and he is carried on a white cloth stretcher into the ambulance.
The cause of death was said to be mechanical asphyxiation, which could only have occurred under Chauvin’s knee, although the prosecution will have to prove he caused it and who knows what further medical evidence will emerge by the time of the trial.
At a memorial service held last Thursday the black civil rights leader Reverend Al Sharpton called on white America to get off black people’s necks. To loud cheers he complained that not even America’s first black president, Barrack Obama, whose own status as an American citizen was questioned by Donald Trump, could shake off the white man’s knee on his neck – no white man’s burden here Mr Kipling!
He then asked the congregation to stay silent for eight minutes and 46 seconds in empathy with George Floyd’s suffering before he died and to show how long the policemen had to think about what they were doing.
In the US homicide is charged in degrees, although the principles are broadly similar to murder and manslaughter under English criminal law.
Chauvin was originally charged with third degree murder, which under Minnesota’s criminal law is defined as causing the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind without regard to human life but short of the intention to kill.
This would not be murder in English law because murder requires a specific intent to kill or cause really serious harm. The definition of third-degree murder in Minnesota implies recklessness, which is charged as manslaughter in England.
It carries the most flexible punishment in criminal law although if it involves recklessness it normally attracts a hefty prison sentence.
Two second-degree murder charges were added against Chauvin last week on the basis that he intended to kill but without premeditation. Or that if he did not intend to kill Floyd, he killed him while committing another felony.
First-degree murder is usually an unlawful killing that is intentional and premeditated and attracts a sentence of life imprisonment; there is no suggestion that Chauvin preplanned the murder of Floyd.
A conviction for second-degree murder attracts a maximum sentence of 40 years imprisonment whereas it is 25 years for third degree murder. Aiding and abetting an offence attracts the same maximum sentence as the principal offence.
In England if the jury were to conclude that they were not sure Chauvin intended to kill but were sure he was reckless or criminally negligent they would return a verdict of guilty of manslaughter as an alternative.
Asking a jury to convict Chauvin on the basis that he intended to kill George Floyd is not as easy as the video clip suggests because normally a jury is not bound to infer that he intended or foresaw the natural and probable consequence of his actions. And who knows what defences the officers might come up with in the time of corona?
So, although the additional charges were politically savvy, actually the charge of third-degree murder on the basis that Chauvin evinced a depraved mind without regard to the life of George Floyd because he was black seems to fit the realities of police culture in America.
The common law on joint participation in murder cases is that a person who assists or encourages a crime but does not intend to cause death can be convicted of manslaughter if a reasonable person would have realised that the crime might result in physical harm.
So better to concentrate on the third-degree murder charge against Chauvin as the jury would be more likely to convict all of the officers since as we can see and hear they all knew Floyd was pleading desperately that he could not breathe and, recklessly, rather than with the intention to kill him, carried on regardless.