A retired FBI supervisory special agent and CNN law enforcement analyst predicts prosecutors are unlikely to get a murder conviction on former Minneapolis police officer Derek Chauvin.
Writing Tuesday in the New York Post, James A. Gagliano calls the treatment of George Floyd “an appalling case of police brutality” before noting “prosecutors may have made a critical error by overcharging the case.”
“Let us stipulate that the conduct of Chauvin — an armed instrument of the state — was repugnant and yes, criminal,” Gagliano writes. “No twisted, distorted interpretation of ‘objective reasonableness’ — codified as the means to judge law enforcement actions by the Supreme Court in Graham v. Connor — changes that.”
He claims law enforcement professionals won’t defend Chauvin’s actions, but adds “criminal cases are often messy, complicated, and complex.”
Gagliano then explains the toxicology report suggested underlying conditions may have contributed to Floyd’s death, which the autopsy attributed to the “combined effects of Mr. Floyd’s being restrained by police, underlying health conditions and any potential intoxicants in his system.”
Traces of fentanyl, methamphetamine and Floyd’s underlying heart condition complicate the particulars of this case, he says.
“In court — not the public opinion version — there will be an introduction of physical and testimonial evidence. And this is where prosecutors have made a miscalculation,” the 25-year FBI agent believes.
Last May, Hennepin County Attorney Mike Freeman charged Chauvin with third-degree murder and second-degree manslaughter, but “public outcry” from activists led Attorney General Keith Ellison to add a second-degree murder charge.
This could be a grievous error by Ellison.
“The prosecutorial burden of proof in a murder case is an impossibly high threshold when saddled with the autopsy report’s listed contributory factors in Floyd’s death,” Gagliano said. “Proving an applicable second-degree murder charge in Minnesota requires an intent to cause death; impossible to prove in this case.”
He says the definition of third-degree murder is “murkier and plagued with conflicting interpretations.”
“However, a person may be charged with second-degree manslaughter if they ‘knowingly or consciously take a risk (like kneeling on someone’s neck) that results in the death of a person,’” Gagliano writes. “Chauvin’s conduct was manslaughter; culpable negligence. For those viewing as injustice anything less than a murder conviction, forewarned is forearmed.”
In the end, the West Point graduate and U.S. Army veteran predicts Chauvin’s acquittal on the murder charges and a guilty verdict of second-degree manslaughter.