Doc Posted June 2, 2020 Posted June 2, 2020 3 hours ago, SectionC3 said: Do you know how many times a conviction of depraved indifference murder was upheld in NYS in a one-on-one setting (like this one)? Once, as of about five years ago. It is not an easy crime to prove and really should be a charge of last resort. Once again, this is an appropriate “last resort” situation because it allows for a charge of murder that might actually stick. To me it’s not the continued use of the knee that makes the case. It’s the point at which the officer knew or should have known the victim did not have a pulse, and the officer’s response to that knowledge (as you noted, the failure to seek or give medical help). From what I've gathered, Floyd's pulse was taken, he was found to not have one, and Chauvin still kept kneeling on his neck for another 2-1/2 minutes. The office can't claim ignorance about the pulse check. And whoever checked the pulse should be charged for failing to get Chauvin off of Floyd's neck and not getting him help.
SectionC3 Posted June 2, 2020 Posted June 2, 2020 14 minutes ago, Doc said: From what I've gathered, Floyd's pulse was taken, he was found to not have one, and Chauvin still kept kneeling on his neck for another 2-1/2 minutes. The office can't claim ignorance about the pulse check. And whoever checked the pulse should be charged for failing to get Chauvin off of Floyd's neck and not getting him help. Charged with what? Accessorial liability? Criminally negligent homicide? Official misconduct? Defiling a corpse? The devil lies in the details there. And what about the other two officers? Their conduct (and, potentially, misconduct) is an equally murky deal. I’m not saying that those three are innocent (in a literal sense) or that they have moral high ground. I’m just not sure what, if any, criminal liability they should face. I’m not politicizing our exchange - hear me out - your point reminds me of Trump yesterday on that call saying that looters/rioters should get “five years, ten years” of imprisonment. It’s a nice thought, and for some of the rioters it might be an appropriate punishment. But the question is how to achieve that goal under the law, much as we need to answer how under the law to hold the “other” three officers responsible in the Floyd incident. I have no idea what criminal statute Trump was relying on in seeking decade-long terms of incarceration for rioters, and I’m equally leery of suggesting that the Minnesota officers definitely should be “charged” because I haven’t seen enough evidence to know what, if any, criminal statutes they may have broken. Finally, on the kneeling, I don’t see that as terribly important after the absence of a pulse was identified. It’s the failure to obtain medical help at that point that likely will support a finding of depravity. The key (assuming Minnesota’s law is like the depravity law in NYS) is the act of leaving the victim to die.
Doc Posted June 2, 2020 Posted June 2, 2020 10 minutes ago, SectionC3 said: Charged with what? Accessorial liability? Criminally negligent homicide? Official misconduct? Defiling a corpse? The devil lies in the details there. And what about the other two officers? Their conduct (and, potentially, misconduct) is an equally murky deal. I’m not saying that those three are innocent (in a literal sense) or that they have moral high ground. I’m just not sure what, if any, criminal liability they should face. I’m not politicizing our exchange - hear me out - your point reminds me of Trump yesterday on that call saying that looters/rioters should get “five years, ten years” of imprisonment. It’s a nice thought, and for some of the rioters it might be an appropriate punishment. But the question is how to achieve that goal under the law, much as we need to answer how under the law to hold the “other” three officers responsible in the Floyd incident. I have no idea what criminal statute Trump was relying on in seeking decade-long terms of incarceration for rioters, and I’m equally leery of suggesting that the Minnesota officers definitely should be “charged” because I haven’t seen enough evidence to know what, if any, criminal statutes they may have broken. Finally, on the kneeling, I don’t see that as terribly important after the absence of a pulse was identified. It’s the failure to obtain medical help at that point that likely will support a finding of depravity. The key (assuming Minnesota’s law is like the depravity law in NYS) is the act of leaving the victim to die. There was no need for Chauvin to kneel on Floyd's neck once the other two officers were there and holding him down. When he continued doing it after there was no pulse, that is what constitutes depraved indifference because he not only didn't get/give help, he continued the action which led to his death. As for charging the other guys, there are charges that can be leveled. Take your pick of any of the ones you mentioned. And as for Trump, you guys always want to parse every word he says. Most often times looking for racism or other things to rile up the base. What he was doing was saying "if you get arrested you should face severe consequences," as a way of deterring people. 1
SectionC3 Posted June 2, 2020 Posted June 2, 2020 2 minutes ago, Doc said: There was no need for Chauvin to kneel on Floyd's neck once the other two officers were there and holding him down. When he continued doing it after there was no pulse, that is what constitutes depraved indifference because he not only didn't get/give help, he continued the action which led to his death. As for charging the other guys, there are charges that can be leveled. Take your pick of any of the ones you mentioned. And as for Trump, you guys always want to parse every word he says. Most often times looking for racism or other things to rile up the base. What he was doing was saying "if you get arrested you should face severe consequences," as a way of deterring people. You be the doctor, I’ll be the lawyer. Kneeling on a dead guy isn’t nearly as reflective of depraved indifference as failing to get medical help when the absence of pulse is identified. I realize that here the action/inaction is basically one and the same, but Chauvin’s not charged with defiling a corpse, he’s charged with essentially acting with indifference toward whether Floyd lived or died. Under your approach anyone who gets in a bar fight and puts somebody in a choke hold for too long a period could be hit with a depraved indifference crime. That’s not what depraved indifference is or what it was intended to be used for. Sure, the “other” officers can be charged with anything under the sun. But what charges will stick under the law? Simply saying that they can be charged with whatever I mentioned is akin to reaching into your rear and pulling something out. This is a nation of laws, and I don’t believe in whacking people with elevated charges simply for the sake of doing so. To do so is to abuse prosecutorial power. So if the prosector is going to charge those officers, the misconduct has to fit the alleged crime. 1
Doc Posted June 2, 2020 Posted June 2, 2020 (edited) 45 minutes ago, SectionC3 said: You be the doctor, I’ll be the lawyer. Kneeling on a dead guy isn’t nearly as reflective of depraved indifference as failing to get medical help when the absence of pulse is identified. I realize that here the action/inaction is basically one and the same, but Chauvin’s not charged with defiling a corpse, he’s charged with essentially acting with indifference toward whether Floyd lived or died. Under your approach anyone who gets in a bar fight and puts somebody in a choke hold for too long a period could be hit with a depraved indifference crime. That’s not what depraved indifference is or what it was intended to be used for. Sure, the “other” officers can be charged with anything under the sun. But what charges will stick under the law? Simply saying that they can be charged with whatever I mentioned is akin to reaching into your rear and pulling something out. This is a nation of laws, and I don’t believe in whacking people with elevated charges simply for the sake of doing so. To do so is to abuse prosecutorial power. So if the prosector is going to charge those officers, the misconduct has to fit the alleged crime. I'll remind you of that, the next time you post in the HCQ thread. And we're in violent agreement that failing to get help after going pulseless is what constitutes depravity. What I'm saying is that continuing the action that led to his death (as evidenced by the "I can't breathe") and now the autopsy, make it a far easier case to prosecute. You kept saying it would be difficult to determine. And I don't know the exact charges for the other officers. I'll leave that to you lawyer types. But they'll should and need to come up with something. There will be more looting, rioting and destruction if there aren't. Edited June 2, 2020 by Doc
SectionC3 Posted June 2, 2020 Posted June 2, 2020 36 minutes ago, Doc said: I'll remind you of that, the next time you post in the HCQ thread. And we're in violent agreement that failing to get help after going pulseless is what constitutes depravity. What I'm saying is that continuing the action that led to his death (as evidenced by the "I can't breathe") and now the autopsy, make it a far easier case to prosecute. You kept saying it would be difficult to determine. And I don't know the exact charges for the other officers. I'll leave that to you lawyer types. But they'll should and need to come up with something. There will be more looting, rioting and destruction if there aren't. The autopsy is essential to the prosecution because it establishes causation. Assume, for fun, that Floyd ODed on opioids and was going to die irrespective of what Chauvin (who was unaware of the imaginary opioid use) did or didn’t do. Chauvin’s probably guilty of the NYS equivalent of assault second in that scenario, subject to amplifications based on the commission of the crime under color of law of which I’m not aware. But he’s not going down for depraved indifference murder or manslaughter in that scenario because his actions would not have caused the death of another person. Action is a good word here; depravity really is about action (say, beating a baby to within an inch of its life) and then inaction (failing to seek medical help for the injured baby and leaving the baby to die while you watch TV). Finally, depravity is difficult to prove, no matter how obvious it might seem in this situation. To my knowledge, it’s withstood appeal once in New York State (Peo v Barboni, from which the baby fact pattern is drawn). It is not a charge to be thrown around casually or to be relied on except for in the rarest of circumstances. The extreme difficulty in proving intentional murder here, coupled with the desire to prosecute for something other than manslaughter and the very unique nature of this situation, make it appropriate here. But it is a nettlesome crime to prove. 1
Doc Posted June 3, 2020 Posted June 3, 2020 On 6/2/2020 at 3:37 PM, SectionC3 said: The autopsy is essential to the prosecution because it establishes causation. Assume, for fun, that Floyd ODed on opioids and was going to die irrespective of what Chauvin (who was unaware of the imaginary opioid use) did or didn’t do. Chauvin’s probably guilty of the NYS equivalent of assault second in that scenario, subject to amplifications based on the commission of the crime under color of law of which I’m not aware. But he’s not going down for depraved indifference murder or manslaughter in that scenario because his actions would not have caused the death of another person. Action is a good word here; depravity really is about action (say, beating a baby to within an inch of its life) and then inaction (failing to seek medical help for the injured baby and leaving the baby to die while you watch TV). Finally, depravity is difficult to prove, no matter how obvious it might seem in this situation. To my knowledge, it’s withstood appeal once in New York State (Peo v Barboni, from which the baby fact pattern is drawn). It is not a charge to be thrown around casually or to be relied on except for in the rarest of circumstances. The extreme difficulty in proving intentional murder here, coupled with the desire to prosecute for something other than manslaughter and the very unique nature of this situation, make it appropriate here. But it is a nettlesome crime to prove. BTW, the charge against Chauvin was upgraded to Murder 2 and other 3 officers charged with aiding and abetting. 2
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