Everyone
knows the story by now. A Minneapolis
cop subdued an arrestee, George Floyd, and kept his knee on Floyd’s neck for an
extended period of time, allegedly despite Floyd’s protestations that he
couldn’t breathe. Other cops stood by
and watched. Soon thereafter, Floyd
died, presumably of suffocation. Few
people are surprised that the incident caused protests, which turned into riots
and looting, which in turn caused many
millions of dollars in property damage and at least one death. While the riots and looting are nonsensical, such
criminal behavior grew out of the protests which, it appears, were rooted in
claims of racism.
Based
on this, politicians and multiple levels of law enforcement were quick to jump
into the mix, declare not only the cop’s guilt but also his racial motivation, and
then kick-start their investigations. There’s
even a federal probe into this alleged homicide, which is normally a routine state matter. But could all of the mayhem and
millions of dollars in damage have been avoided if, instead of launching an investigation, the local Minneapolis
prosecutors simply treated this case like a run-of-the-mill homicide?
Admittedly,
I only practice criminal defense in one state: Minnesota ’s
neighbor to the east, Wisconsin . But here’s the way prosecutors work when
presented with a mere accusation of strangulation, even without a death,
without video evidence, and without supporting evidence of any kind: (1) the police
arrest the suspect immediately based solely on an accusation; (2) the prosecutors file a complaint within 48 hours; and
(3) prosecutors consider new evidence, if any, should it come to light before
trial. The reason law enforcement acts
so quickly is that the test for an arrest and a criminal complaint is not
proof of guilt beyond a reasonable doubt, but rather the incredibly low standard of probable cause.
Why
depart from this method of operation now?
Do we really need an investigation into whether the cop was a racist or
just a bad cop in general? Not at all,
and certainly not before an arrest and filing of a complaint. Race can be introduced as a motive at trial;
there doesn’t have to be any pretrial investigation or finding. And if race isn’t the motive, i.e., the cop
was just a bad cop, then guess what? The
cop is still facing a homicide charge because the state doesn’t have to prove
racial motive (or any motive) to win a conviction. Nor would they even want to in a case like
this where the entire incident was captured on video.
So
just stop with the investigations and the “national conversations.” There is more than enough probable cause to
arrest and charge the cop. Prosecutors
should have done what prosecutors do: charge first, ask questions later. The cop-defendant would then have the same
rights as every other defendant charged with a crime, including the right to
counsel, the right to remain silent, the right to due process, the presumption
of innocence, and the right to a jury trial.
Sometimes,
business as usual is better than grandstanding, race-based investigations, and so-called
national conversations carried on by windbag politicians and talking heads in
the media. Any other person caught on
video doing what this cop did would be arrested, charged, and then offered a
plea deal or a trial. There is more than
enough for probable cause.
The
only question is whether a swift arrest and the filing of charges would have
also prevented the riots and looting.
Given the irrationality of burning an Auto Zone and stealing televisions
and other consumer goods from a Target store, I’m not sure. But either way, had the local prosecutor
acted routinely, the cop-defendant and his defense lawyer would currently be
preparing for their first (or next) court appearance.
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