Question: If Chauvin can only be sentenced for the most serious offense does it mean he will most likely get 12.5 years according to the Minnesota sentencing guidelines and no more? How likely is Judge Cahill to depart from those guidelines? 

Answer from Prof. Ira Robbins: This is an excellent question. Here’s my take on the Chauvin verdict, the possible sentence, and beyond.

(1) The jury did an excellent job. The evidence was overwhelming. Convictions on two murder charges and one manslaughter charge. Yet people are asking, “How can he be convicted of three homicide crimes? There was only one death. Shouldn’t the jury have come back with just one conviction?” The answer is that in Minnesota (unlike in most states), Chauvin could be convicted on more than one homicide charge, but punished for only one of them. (See  Minn. Stat. Ann. § 609.035: “If a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses.”) So Judge Cahill will impose a sentence only for the most serious charge – second-degree murder.

(2) What is the sentence likely to be? The maximum punishment for second-degree murder in Minnesota is 40 years in prison. (See  Minn. Stat. Ann. § 609.19.) Will Chauvin get 40 years? Not likely. Minnesota, like many states, has what are known as Sentencing Guidelines. These Guidelines aim, among other things, to reduce sentencing disparity by recommending punishment that is proportional to the crime’s severity and the offender’s criminal history. (See https://www.lrl.mn.gov/.../sentencing-guidelines....) For second- and third-degree murder, the Guidelines recommend a sentence of 12.5 years for a convicted defendant, like Chauvin, who has no prior convictions. (See https://mn.gov/.../2020StandardSentencingGuidelinesGrid.pdf.)

The judge is permitted to depart from the Guidelines recommendation in various situations. Relevant criteria in this case that would allow for an “upward departure” include: George Floyd was handcuffed and particularly vulnerable; he was treated with particular cruelty; Chauvin abused his authority; and Chauvin committed the crime in a group and in front of children. These factors and others will be presented in the presentence investigation report (PSI), which Judge Cahill will consider before the sentencing proceeding in about eight weeks. How much discretion does the judge have with regard to an upward departure?  Vast discretion. While the judge cannot stack the three convictions and cannot impose a sentence longer than the 40-year maximum, he can opt for anything from 12.5 years to 40 years in prison. (The judge could also opt for a downward departure, but I seriously doubt that would happen.) My guess, subject to further reflection, is that the judge will likely impose a sentence in the 20-to-25-year range.

(3) What will happen then? What about an appeal? Chauvin’s bail was revoked yesterday; he is now in jail. Once he is sentenced, he will be sent to prison. (Conceivably the judge could grant bail pending appeal, but that is a rare occurrence in homicide cases.) In all likelihood, Chauvin will file a notice of appeal, which likely will take at least a year to resolve. It’s too soon to know what issues he will raise regarding the trial proceedings. One interesting aside is that, when Chauvin “pleaded the 5th” and declined to testify in his own behalf, Judge Cahill questioned him directly about whether he was waiving his right to testify willingly and of his own accord. The reason for this inquiry is that, while an attorney can make some decisions for the client, other decisions (such as whether to plead guilty, whether to testify, and whether to take an appeal) must be made by the client (albeit with advice from the attorney). Although judges typically just accept the defendant’s decision not to testify, they do not usually inquire further about it. Undoubtedly Judge Cahill did so for several reasons, including to lessen the likelihood of this becoming an appellate issue.

Apart from any alleged trial errors that Chauvin might raise on appeal, there are some possible issues regarding the substantive charges themselves. Some Minnesota laws are, in a word, quirky. So I would not be surprised to see challenges to Minnesota’s second-degree murder (i.e., felony murder) and third-degree murder statutes. Would these challenges be successful? Nobody knows. There are decisions by the Minnesota Supreme Court dealing with the vagaries of these laws. If the Minnesota Supreme Court were to throw out the second-degree murder conviction, however, the other two convictions would still be on the record. (That’s one of the reasons for allowing convictions on all three homicide counts.) And if the conviction for third-degree murder were also thrown out, the conviction for second-degree manslaughter would be a backup. The maximum penalty for that conviction would be 10 years. (See  Minn. Stat. Ann. § 609.205.) The Sentencing Guidelines recommend a 4-year sentence – again, with the possibility of an upward departure.

Add to all of the above the possibility of time off for good behavior, as well as a period of supervised release. (See https://mn.gov/.../2020StandardSentencingGuidelinesGrid.pdf.)

(4) So what’s the bottom line? Derek Chauvin will serve years in prison. How many? Likely 15 or more. But it’s way too early to know.

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Question: The following questions from multiple people are related to Rep. Maxine Waters' statement to protestors, "I hope we get a verdict that says guilty, guilty, guilty, . . . And if we don't, we cannot go away. We've got to stay on the street. We get more active, we've got to get more confrontational. We've got to make sure that they know that we mean business."

Why did the judge say that Maxine Waters' comments could be grounds for a mistrial? What did she say that could affect the outcome of the trial if she has nothing to do with the trial? Is it even proper for the judge to say this as the jury goes to deliberate?

Yesterday, the defense counsel asked for a mistrial because of prosecutorial misconduct, the statements made by Rep. Maxine Waters, and the media. The judge denied this motion but said that Rep. Waters' comments could lead to a guilty verdict being appealed and overturned. How likely is this claim to succeed in an appeal? 

Answer from Prof. Angela J. Davis: Rep. Waters traveled to Minneapolis to stand with peaceful protestors.  She said, "We've got to stay on the street, and we've got to get more active. We've got to get more confrontational. We've got to make sure that they know that we mean business."  Based on this statement, Chauvin’s attorney moved for a mistrial, claiming that she threatened the jury.   The judge properly denied that motion.  First, she did not threaten the jury. Second, the judge ordered the jury not to watch the news and there was no evidence that anyone on the jury disobeyed his order.  So there was no basis for a mistrial. The defense counsel has repeatedly asked that the jury be sequestered and the judge has denied that motion. If in fact, Rep. Waters had threatened the jury, there would definitely be a basis for a mistrial, but she did not.  

As for this being an issue on appeal, the issue would be whether the judge erred in denying the motion to sequester the jury.  So the judge’s comment that Rep. Waters may have given them an issue on appeal is wrong, totally inappropriate and very troubling.  First,  the issue on appeal would be the judge’s decision not to sequester the jury. Second, the judge’s gratuitous, degrading comments towards Rep. Waters are highly problematic.  Judge Cahill previously expressed his frustration about city officials settling the civil case with the family right before the criminal trial because of the impact it would have on potential jurors. He said, “I wish city officials would stop talking about this case so much . . but at the same time, I don’t find any evil intent that they are trying to tamper with this criminal case.”   Judge Cahill didn’t chastise any of the city officials by name or make degrading remarks about any of them.  Yet he singled out this black woman.  Also, many public officials, celebrities and others have made statements about their desire for a guilty verdict.  The judge’s  degrading statements about Rep. Waters’ comments and his attempt to blame her for a potential reversal of the case were a result of his own biases, in my opinion.  Judge Cahill was praised for reading an instruction on implicit bias to the jury.  It seems that he should read that instruction again -- to himself -- and learn from it.

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Question: If Chauvin is found guilty, when will we find out about sentencing?

Answer from Prof. Jenny Roberts: I am not familiar with Minnesota law or with the local practice, and sentencing practices can vary from jurisdiction to jurisdiction, but generally in a high-level case like this the judge will set a sentencing date in the future if there is a guilty verdict on one or more counts.  It may be a few weeks into the future, usually time to give the probation department time to write what is often called a pre-sentence report. All parties get to review that before the sentencing hearing. In lower-level cases, there is often a sentencing right after a verdict of guilt or a guilty plea, and sometimes in felony cases where there is a plea bargain with an agreed-upon plea, but that’s obviously not the case here. So I would expect, after any guilty verdict, that the judge will set a new date in the not-so-distant future, for sentencing. Note: I would also expect that he will remand Chauvin (take him into custody) if he’s convicted, and that Chauvin will stay locked up until and through any sentencing. Most judges will do that in a conviction in a violent crime case, if the defendant is actually out on bail (and Chauvin is out, $1million bond).

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Question: In his instructions to the jury, the judge informed them of the possible influence that unconscious bias may have in their decision-making.  How typical is it for judges to speak with juries about unconscious bias in jury instructions?

Answer from Prof. Andrew Ferguson: This paper, The Constitutional Right to an Implicit Bias Jury Instruction, is a good resource for understanding unconscious bias. The short answer is that such instructions traditionally are rare.  But the article covers it well.

Answer from Prof. Jenny Roberts: It has become much more common for judges to be trained on implicit bias and jury instructions are also more common (or less uncommon)—but I was still surprised to hear the judge give the instruction. Here’s a short resource that may be helpful.

Answer from Prof. Binny Miller: Most states have adopted pattern jury instructions to guide trial courts in instructing juries.  Jury instructions on bias and prejudice have long been used in most jurisdictions. While instructions on implicit/unconscious bias are much less common, they appear to be gaining traction, and not just in Minnesota.  Here’s an instruction of this type adopted in the Illinois state courts in 2019, for use in the civil context, and a video produced by the US District Court for the Western District of Washington, which addresses implicit bias.  With some exceptions, judges typically have the discretion to decide which instructions to give.

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Question: Can you describe the differences between the charges in this case, including: 1) murder in the second degree, 2) murder in the third degree, and 3) second degree manslaughter. What are the probable punitive outcomes of each of these charges?

Answer from Prof. Ira Robbins: The three charges against Derek Chauvin in the death of George Floyd are: Second-Degree Murder, Third-Degree Murder, and Second-Degree Manslaughter. These are the relevant definitions under Minnesota Law:

Second-Degree Murder: “Whoever does … the following is guilty of unintentional murder in the second degree and may be sentenced to imprisonment for not more than 40 years: (1) causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense ….” This crime is known as felony murder. The prosecution’s theory is that Mr. Chauvin killed Mr. Floyd while committing a felony assault against him. (Minnesota is rare among the states in permitting the crime of assault to support a conviction for felony murder.) Pursuant to the Minnesota Sentencing Guidelines, Mr. Chauvin would likely face a maximum penalty of 12.5 years in prison for this offense, unless Judge Cahill determines that there is good reason for an upward departure. See https://www.revisor.mn.gov/statutes/cite/609.19

Third-Degree Murder: “Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.” This crime is sometimes known as depraved-heart murder. Essentially it means that the defendant consciously disregarded a substantial and unjustifiable risk of killing another person under circumstances manifesting extreme disregard for the value of human life. Pursuant to the Minnesota Sentencing Guidelines, Mr. Chauvin would likely face a maximum penalty of 12.5 years in prison for this offense, unless Judge Cahill determines that there is good reason for an upward departure. See https://www.revisor.mn.gov/statutes/cite/609.195

Second-Degree Manslaughter: “A person who causes the death of another by … the following means is guilty of manslaughter in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both: (1) by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another ….” This crime is sometimes known as involuntary manslaughter. Pursuant to the Minnesota Sentencing Guidelines, Mr. Chauvin would likely face a maximum penalty of 4 years in prison for this offense, unless Judge Cahill determines that there is good reason for an upward departure. See https://www.revisor.mn.gov/statutes/cite/609.205

The jury has the option of convicting Mr. Chauvin of any or all of these crimes. If convicted of more than one, however, he would be sentenced only for the most serious convicted offense.

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Question: Are the charges mutually exclusive, or could Chauvin be convicted of second-degree murder, third-degree murder, AND second-degree manslaughter?

Answer from Prof. Ira Robbins: The jury has the option of convicting Mr. Chauvin of any or all of these crimes (or none). If convicted of more than one, however, he would be sentenced only for the most serious convicted offense.

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Question: Can you weigh in on the qualified immunity aspect of this case? The Minneapolis Police Department came out strongly against the methods Chauvin used, claiming that he went against training procedures. What is the relevance of this testimony in regard to Chauvin’s criminal liability?

Answer from Prof. Jenny Roberts: Qualified immunity is not relevant to the criminal case. It would be relevant in any civil case that Mr. Floyd’s family brought, but they have already settled so it will not be a barrier their either. This source describes ongoing efforts in Minnesota (and some other jurisdictions) about qualified immunity. As for the testimony by Minneapolis police officers on their own use of force training and manual, this is relevant to the question of whether Chauvin’s use of force against Mr. Floyd was reasonable. And that question is relevant because two of the charges (third degree murder and second degree manslaughter) ask the jury to assess whether Chauvin created an unreasonable risk with his actions. For third degree murder in Minn, a person “causes the death of another…by the person’s culpable negligence whereby the person creates an unreasonable risk and consciously takes chances of causing death or great bodily harm to another.”  It is also relevant because Minnesota, like other jurisdictions, has a police use of force statute that allows “reasonable” force under some circumstances. I did not catch what jury instruction, if any, the judge gave on this defense but I can check later. An edited version of the police manual and two statutes on police use of force, both of which I assigned to my Criminal Law students, are below.