The conviction of a police officer for on-duty killing exceedingly rare

According to The New York Times, law enforcement officers kill about 1,000 people a year across the United States. Since the beginning of 2005, 121 officers have been arrested on charges of murder or manslaughter in on-duty killings, according to data compiled by Philip M. Stinson, a criminal justice professor at Bowling Green State University in Ohio. Of the 95 officers whose cases have concluded, 44 were convicted, but often of a lesser charge, he said.

Convictions include cases like the killing of Laquan McDonald in Chicago, for which Jason Van Dyke was sentenced to nearly seven years in prison, and the killing of Justine Damond in Minneapolis, for which Mohamed Noor was sentenced to 12.5 years.

Many officers who avoided criminal convictions have been fired, like three of the other officers in the McDonald case, and Daniel Pantaleo, who used a chokehold on Eric Garner on Staten Island.

More recently, officers involved in the deaths of Mr. Floyd in Minneapolis and Rayshard Brooks in Atlanta have been swiftly indicted on murder charges. Mr. Brooks’s case in particular appears to reflect changing standards; because he grabbed and fired an officer’s Taser before he was killed, several experts said they doubted charges would have been brought had the death occurred before the wave of protests and police scrutiny that followed Mr. Floyd’s death.

But two cases do not prove that prosecutors have grown more willing — or have yielded to increased pressure — to hold officers criminally accountable. Professor Stinson said any such uptick is so far statistically insignificant. And several equally high-profile investigations of police killings have resulted in no indictment.

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Guilty on all Counts!

Former Minneapolis Police officer Derek Chauvin was convicted Tuesday on all counts in the death of George Floyd, whose killing sparked worldwide protests and a reckoning on race in the U.S., reported CBS News. After about a day of deliberations, the jury found Chauvin guilty of unintentional second-degree murder, third-degree murder and second-degree manslaughter. 

Judge Peter Cahill read the verdict at the heavily secured Hennepin County Government Center in downtown Minneapolis, where the trial began last month. A cheer could be heard from the crowd of peaceful protesters that had gathered outside.   

Chauvin showed little reaction after the verdict was announced. Judge Cahill announced his bail had been revoked and Chauvin was led away in handcuffs. 

Cahill said sentencing will take place in about eight weeks.  

The jury — made up of six White people, four Black people and two multiracial people — heard 13 days of sometimes emotional testimony.  The jury was sequestered during deliberations, but was not sequestered during the earlier portion of the trial.

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Mangino comments on Derek Chauvin guilty verdict

Watch my interview on WFMJ-TV21 Evening News on the Derek Chauvin guilty verdict in the death of George Floyd.

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Jury continues to deliberate in Derek Chauvin trial

The fate of Derek Chauvin, the former Minneapolis police officer accused of killing George Floyd, is now in the hands of jurors, who will continue to deliberate today in the landmark case that forced a national debate on race and policing, reported the Washington Post.

The eyes of the nation are focused on Minneapolis and bracing for the outcome of the verdict, remembering how Floyd’s death touched off weeks of civil unrest in the United States and brought millions into the streets worldwide in protests for social justice.

The jury of 12 people — six White, four Black and two multiracial — listened to nearly six hours of closing arguments Monday as the prosecution and defense ended the case just as they began three weeks ago, presenting vastly different views of the circumstances that led to Floyd’s Memorial Day death on a Minneapolis street.

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Supreme Court complicit in structural racism

Nancy Gertner a retired federal judge in Boston and a law professor at Harvard and Dean Strang a criminal defense lawyer in Madison, Wis., and a law professor at Loyola University Chicago, write in The Boston Globe:

Caron Nazario had a newly purchased SUV with a temporary plate taped to the back of the vehicle, properly and lawfully, until his new plates arrived. Daunte Wright had an expired license plate and an air freshener hanging from his rear view mirror. Police officers in both situations said that’s why they were stopped. Nazario was held at gun point and pepper sprayed, but survived. Wright, who had an open arrest warrant for missing a court appearance on a misdemeanor charge, was fatally shot by police.

Although Nazario’s stop happened last December, in rural Virginia, and Wright’s last Sunday, in suburban Minnesota, the patterns are clear. Both are Black men. Both were stopped for minor traffic offenses, or for no offense at all.

Of course, we don’t know the actual intentions of the police officers who stopped both men. We don’t know what racial attitudes or suspicions or anger they harbored, if any.

But that is the point: According to the Supreme Court, the real reason for the stop — even if it was blatant racism — doesn’t matter. The court’s 1996 decision in Whren v. United States held that a traffic stop is lawful if police can come up with some traffic infraction to justify it, however trivial. The subjective intentions of the police — which could be the real reasons for the stop — are irrelevant.

Whren v. United States marked one of those moments in this nation’s history when law reinforced structural racism, when the highest federal court cemented racism more firmly into place. The court knew what it was doing. The briefs included arguments about the probable impact of upholding pretextual stops, backed by statistics and the undeniable, lived experience of Black citizens. Allowing such stops would be to reinforce and insulate racial biases in policing. The court upheld the lower court’s decision anyway.

Wait, you say. There still has to be a traffic violation or at least reasonable suspicion of one. True. But state and local traffic codes are filled with minor, noncriminal infractions — many of them having no serious relation to safety — that a police officer plausibly can stop almost anyone. Fail to make a complete stop at a stop sign? We all do it, but police can stop you if they wish. Have your car window open and the radio on too loud for an officer’s taste? You can be stopped. A decal on your back window? That might obstruct your vision; you can be stopped. Indeed, stopping a car for things like an air freshener (obstructing the driver’s vision) makes Black and brown drivers and their passengers vulnerable to the needless indignity of traffic stops that are more about snooping — and to search a car and its occupants — or worse, harassing.

Moreover, the police don’t even have to be correct when they say that you were violating a traffic or vehicle code rule. They just have to prove to a judge that they were honest in their initial suspicion. Thanks to another Supreme Court case, a police officer who purports to enforce traffic laws can be wrong about those laws, if the mistake was in “good faith,” a “whoops” defense available to no other citizen. That’s cold comfort to Caron Nazario, who was driving lawfully but wound up handcuffed on his stomach on the pavement. Moments earlier, the officer told Nazario that “you’re fixin’ to ride the lightning, son!” — a reference to the electric chair — and that he “should be afraid” to get out of the car, which was what the police had ordered Nazario to do.

Even when wrong, if police can clear the low hurdle of reasonable suspicion of some traffic infraction — something the least creative or experienced of them can do — they can pursue their hunches to investigate anyone. The Supreme Court has also relaxed the standards for constitutional searches under the Fourth Amendment when traffic stops are involved.

So says the nation’s highest court. But of course, police departments don’t have to take every opportunity for abuse or high-handedness that the Supreme Court offers. By internal policy, they could reject Whren and limit traffic stops to actual violations that threaten public safety. Likewise, unless and until the Supreme Court reverses its decision in Whren, state courts could decline to follow it under their state constitutions. While Whren remains the law of the land, it need not remain the practice.

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Closing arguments tomorrow in trial of Derek Chauvin charged in the death of George Floyd

Testimony in the murder trial of former Minneapolis police officer Derek Chauvin ended Thursday with Chauvin invoking his constitutional right not to testify and a prosecution expert briefly taking the witness stand. Jurors are likely to begin deliberating Monday, reported the Minneapolis Star-Tribune.

Closing arguments are scheduled for Monday, moving the trial into its seventh week. Jurors will be immediately sequestered for deliberations as they consider the charges facing Chauvin in the May 25 death of George Floyd — second-degree murder, third-degree murder and second-degree manslaughter.

"I will invoke my Fifth Amendment privilege today," Chauvin told the court Thursday morning. The Fifth Amendment protects against self-incrimination.

Chauvin's brief remarks in response to questions from his attorney, Eric Nelson, and Hennepin County District Judge Peter Cahill were the most he's spoken publicly since kneeling on Floyd's neck for about 9 ½ minutes last year when arresting him for using a fake $20 bill to buy cigarettes.

Chauvin took off a blue surgical face mask, mandated by the courts for COVID-19 protection, and spoke into a microphone in his hand. Jurors were not present for the discussion.

Nelson reminded Chauvin that "the state would have broad latitude" to cross-examine him as a witness if he testified. Nelson and Chauvin told the court they had "repeatedly" discussed whether to testify.

"We have gone back and forth on the matter would be kind of an understatement, right?" Nelson asked Chauvin.

"Yes, it is," Chauvin said with a small hint of a smile.

Nelson asked Chauvin if they had a "lengthy" meeting Wednesday night about testifying that led to "further discussion."

"Correct," Chauvin said, adding that he would not testify.

"The decision whether or not to testify is entirely yours," Cahill told Chauvin after his discussion with Nelson. "In other words, it's a personal right. … Is this your decision not to testify?"

"It is, your honor," Chauvin said.

The judge asked if he had any questions. He said no. The judge asked if anyone had made promises or threats to influence his decision.

"No promises or threats, your honor," Chauvin said.

Cahill asked Chauvin if he wanted jurors to receive a special instruction on the issue, which is offered by the courts when defendants choose not to testify. Chauvin said yes.

"The state must convince you by evidence beyond a reasonable doubt that the defendant is guilty of the crime charged," according to the instruction Cahill recited Thursday. "The defendant has no obligation to prove innocence. The defendant has the right not to testify. This right is guaranteed by the federal and state constitutions. You should not draw any inference from the fact the defendant has not testified in this case."

The defense officially rested its case several minutes later with jurors in attendance. Nelson called seven witnesses between Tuesday and Wednesday.

Arthur Reed, one of Floyd's cousins, watched the proceeding from the lone seat in the courtroom designated for a Floyd family representative. COVID-19 safety protocols have severely limited the number of attendees. A woman sat in a seat Thursday reserved for Chauvin's supporters. She declined to identify herself to a reporter.

Asked outside the courtroom about Chauvin's decision not to testify, Reed said he believed the prosecution "would have chopped him down second by second" were he asked why he remained on Floyd for more than nine minutes.

"We didn't think they were going to put him on at all," Reed said. "We're just ready to get this over with, make sure [Floyd] gets the justice he deserves. We think the state has put on an excellent case."

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MCN/USA TODAY Network: Court packing or court persuasion

Matthew T. Mangino
MCN/USA TODAY Network
April 16, 2021

Recently President Joe Biden issued an executive order creating the Presidential Commission on the Supreme Court of the United States.  The President characterized it as a bipartisan group of experts on Court reform.

A White House press release suggested the Commission’s “purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform… including the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”

The phrase that got everyone’s attention was the “size of the court.”  It is no secret that Democrats want to pack the Supreme Court.  The term “packing” comes from the late 1930s, when President Franklin D. Roosevelt wanted to put restrictions on the court when it came to age.

The Judicial Procedures Reform Bill of 1937, commonly referred to as the “court-packing plan,” was Roosevelt’s attempt to appoint up to six additional justices to the Supreme Court for every justice older than 70 years, 6 months, who had served 10 years or more.

According to History.com, Roosevelt’s plan was seen as a political ploy to change the court for favorable rulings on his New Deal legislation.

Roosevelt’s court packing plan failed. According to Reuters, the Supreme court has nine justices and that has not changed since 1869.

As with Roosevelt, President Biden faces a similarly unsympathetic Court.  With Justice Amy Coney Barrett’s rushed confirmation only weeks before the election the Court has a decidedly right-leaning bent with six conservatives and three progressives.

Democrats in the House of Representatives and Senate have proposed legislation to expand the court.  The sponsors of the bill suggest in a press release, “Nine justices may have made sense in the 19th century when there were only nine circuits, and many of our most important federal laws—covering everything from civil rights, to antitrust, the internet, financial regulation, health care, immigration and white-collar crime—simply did not exist and did not require adjudication by the Supreme Court … having only nine justices is much weaker today, when there are 13 circuits. Thirteen justices for 13 circuits is a sensible progression.”

For his part, President Biden has previously indicated that he is leery of expanding the court. Justice Stephen G. Breyer, one of the three progressive judges on the court, said this week that packing the court would make the court appear political and erode public confidence.

Speaking recently as Harvard Law School, Breyer said that the court’s authority depends on “a trust that the court is guided by legal principle, not politics.”

Most Americans are against court packing, the Senate is split 50/50 and Joe Biden is skeptical—so why create a commission to study expanding the court?

A closer look at Roosevelt’s court packing plan may provide some insight.  FDR’s plan to add more justices never came to fruition, but according to The Hill, the court packing plan succeeded in intimidating the Supreme Court into a retreat from its protection of economic liberty against progressive aspirations to regulate American industry.

The Court, following Roosevelt’s “failed” court packing plan, began to act more favorably with regard regulation, public works programs and other Roosevelt initiatives. As the high Court lessened the pressure on FDR the country began to lift itself from the woes of economic decline.

Could President Biden be sending a message to the Court?  Chief Justice John Roberts has not shied away from voting with his progressive colleagues and he has been an ardent supporter of the Court’s reputation.  Perhaps the President’s maneuvering on court reform is a shot across the bow to get the Court’s attention.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)

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