After lawyers for the prosecution and defense wrap up Derek Chauvin’s trial Monday with closing arguments, the 12-person jury will be left to deliberate, and ultimately reach a verdict in the case.
Chauvin faces three charges in the death of George Floyd. A video recorded by a bystander showed Chauvin kneeling on Floyd’s neck for more than nine minutes last Memorial Day.
It could take the jury hours, days or longer to reach a verdict. But when an announcement is made, it may not be as simple as “guilty” or “not guilty.” With three separate charges, each with three separate possible outcomes, there’s a lot of different ways the verdict could potentially go.
MinnPost talked with Rachel Moran, associate professor of law at the University of St. Thomas School of Law, about the potential outcomes of the trial.
The charges against Chauvin
Before we get into what could possibly happen with the verdict, it’s important to have an understanding of Chauvin’s charges. The three charges are different in terms of their underpinnings — what the prosecution has to prove to the jury, and in terms of the severity of their penalties.
Second-degree murder: The most severe charge Chauvin faces is second-degree murder. In order to convict Chauvin on this charge, the jury has to find Chauvin was committing third-degree assault causing serious bodily harm — meaning he significantly injured Floyd — when he caused his death. Conviction on this charge does not require that Chauvin intended to kill Floyd. The maximum sentence is 40 years in prison.
Third-degree murder: The middle charge in terms of severity, third-degree murder requires that the prosecution prove that Chauvin killed Floyd “by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life” in order to convict him on this count. The maximum sentence is 25 years.
Second-degree manslaughter: Chauvin also faces a second-degree manslaughter charge. Manslaughter requires prosecutors to prove that Chauvin’s negligent actions created an unreasonable risk of death or great bodily harm. The maximum sentence is 10 years.
How the jury could find
On each of those charges, there are three possible outcomes of the jury deliberations: acquittal, conviction or a hung jury.
When the jury announces its decision, Chauvin could be acquitted — meaning all 12 jurors find him not guilty of the charge beyond a reasonable doubt — on one, two, or all of the charges he faces.
On any charges Chauvin is acquitted of, he cannot be retried. “You cannot appeal an acquittal and you cannot retry after an acquittal,” Moran said.
If he is acquitted on all three, he would walk free. This was the case in the trial of Jeronimo Yanez, the officer who shot and killed Philando Castile, who was charged with second-degree manslaughter and dangerous discharge of a firearm and found not guilty.
But even if Chauvin is acquitted on all counts, Moran said, his legal battles aren’t likely to be over.
While Chauvin can’t be re-tried on any of the charges levied by the state that he’s been acquitted of (you might know this concept as “double jeopardy”), the federal government appears to be making plans to charge him with violating Floyd’s civil rights, Moran said.
During the trial, Hennepin County Medical Examiner Dr. Andrew Baker mentioned in his testimony that he had testified before a federal grand jury fairly recently, indicating that process may be underway.
Other officers who have killed in the line of duty have faced federal civil rights charges, including Michael Slager, the former South Carolina police officer who shot and killed a Black man named Walter Scott as he was fleeing. After his state court trial resulted in a hung jury and a mistrial, Slager was charged with “deprivation of rights under the color of law.” He pleaded guilty.
If Chauvin is acquitted on all or most of the charges, Moran thinks the federal government would likely proceed charging him. If he is convicted on one or more of the more serious charges in Minnesota, the federal government may let the charges go.
Just as the jury could find Chauvin not guilty on some or all of the charges, all 12 could find him guilty beyond a reasonable doubt on some or all of them.
If this happens, all criminal defendants have an automatic right to appeal, and Moran expects Chauvin to take it.
Moran, who has a background as an appellate attorney, said there haven’t been any glaring things — usually an error by the judge — that stuck out to her as obvious appealable issues, but the defense is likely to come up with some.
As an example of the kind of issue that could lead to an appeal, Moran referred to a ruling by Judge Peter Cahill on last week. The prosecution wanted to introduce new evidence that showed the level of carbon monoxide in Floyd’s blood within the normal range, which could poke holes in the defense’s assertion that his death may have been caused, in part, by carbon monoxide poisoning because he was near a vehicle’s exhaust while he was pinned by Chauvin.
Cahill did not allow the jury to hear the evidence because it came late in the trial — after the defense had finished calling witnesses.
“The defense objected, saying it was a really late disclosure; it’s not fair to them,” Moran said. “And Judge Cahill ruled in the defense’s favor. If he had ruled in the state’s favor and if Mr. Chauvin were to get convicted, I’m sure they would have tried to make an issue about that on appeal.”
If Chauvin is convicted of third-degree murder, the pending Minnesota Supreme Court review of the case of Mohamed Noor, the officer who was convicted of third-degree murder in the 2017 death of Justine Damond, could have bearing on Chauvin’s appeal. The crux of the issue is whether you have to endanger the lives of many or just one person to be convicted of the charge.
“There’s still a bit of an open question in Minnesota about the proper interpretation of the third-degree murder statute and the Minnesota Supreme Court is going to decide that issue in Mohamed Noor’s case, but they haven’t yet. And if they were to decide that issue in a way that’s favorable to Mr. Chauvin, and if he were to be convicted of third degree murder, that he would certainly be appealing on that ground,” Moran said.
As for how long an appeals process could take, Moran said it would take the appellate court about a year — very roughly speaking — to issue a decision. The Minnesota Supreme Court only hears a fraction of cases it is asked to, and that would make the appeals process even longer.
The third possibility is that all 12 jurors can’t agree on a “guilty” or “not guilty” verdict on some or all of the charges. When this happens — and it only takes one juror — it’s called a hung jury.
If the jury is hung on any of the counts, it’s considered a mistrial on that count. That means the case can be re-tried on any of the charges on which the jury was hung.
“If there’s a hung jury on all three counts, I think the state would very likely retry him. Of course, that’s a huge expenditure of additional time and energy and resources, but I don’t think they would let that go,” Moran said.
“If there’s a hung jury on just one or maybe two of the counts that would really depend on which count and whether they got a conviction on the other account. So they have the option,” she said.
If Chauvin is convicted on any of the charges, he faces maximum sentences of up to 10 years or up to 40 years in prison. If he is convicted on multiple counts, he will not serve consecutive sentences on them. Instead, he will be sentenced on the most serious of the counts, Moran said.
Under the state’s sentencing guidelines, the recommended sentences are shorter than the maximum allowable under state law. But the prosecution has indicated they will ask for a sentence longer than the recommendation, called an aggravated sentence, for Chauvin, Moran said.
There are certain grounds on which sentences can be extended, and two of them are pertinent in this case, Moran said.
The first is that the scenario happened in front of children. “That’s one of the reasons they presented those four children to testify was because it did happen in front of multiple people under age 18,” Moran said.
Another condition under which aggravating sentences may be granted is when an abuse of governmental authority is involved in committing the crime.
“And here you’ve got a police officer acting on duty during this incident,” Moran said.
It’s up to a judge to grant or deny an aggravated sentence, but in order to get one, the prosecution would typically need to get the jury to make a finding that aggravating factors were at play (Update 4/20: On Monday, Chauvin consented to a Blakely waiver, which means Cahill will decide whether the aggravating factors were proven instead of the jury).