Andy McCarthy Explains the Charges Against Derek Chauvin

First of all, I don't think people understand, and I'm probably one of them, what exactly is he prosecuted? Is it third degree, second degree, first degree? What is the exact charge?

There are three charges, Dennis. There are two murder charges and one manslaughter. The murder charges are both unintentional homicide. There is murder in the second degree And the theory behind that is that a person is unintentionally killed in the course of somebody committing another crime. So the theory that they're pursuing is that at a certain point, because Chauvin used excessive force, the restraint became a criminal assault. And it caused Floyd's death. So they have to prove that the criminal assault was intentional, not that they intended to cause death. And that's second-degree murder. You can get, uh, 40 years for that. The second charge is third-degree murder, and the theory of that is depraved indifference to human life. That is, that the officer used tactics which exhibited such an amoral, depraved— sort of the best example I remember from law school is the person who shoots a gun into a crowd, where it's indiscriminate. You're not trying to kill any particular person, but you're completely heedless of what kind of danger you put people in. So that's the third-degree charge, and you can get up to 25 years for that. And then finally there's manslaughter, which is negligent homicide, which is that you're not intending to cause the death of the person, but you fail in some duty of care in a way that's so grossly negligent that you create a dangerous situation and death is caused. So those are the three.

And what is the punishment for that?

I believe it's up to 10 years, but it may be less than that.

So it shows how little I know about the way courts work. What is the— what is this notion of throwing 3 different charges? What is it sort of like I get 3 chances with my darts to hit a bullseye?

Well, as a prosecutor, you're allowed to charge any offense that a rational jury could reasonably conclude you, you proved. And it would be problematic for the prosecutors if they were charging counts that were internally inconsistent. These are really counts that are internally consistent, but they hinge on questions of causation and what was going on in Chauvin's mind. So it's— there's not a lot of I shouldn't say there's not a lot of dispute about, um, what physically happened, because in fact, uh, there is some dispute about whether Chauvin, um, physically sat on Floyd's neck, or as his defense is showing— and I think they're doing a very good job with this with the expert witnesses— that he really put pressure between the shoulder blades and, and touched on the neck, but not in a way that, um, would have inhibited Floyd's breathing, which is a very important issue in the case. But you're allowed to charge things that are consistent and that end up giving the jury multiple grounds to—

Andrew McCarthy, will the defense claim that if Derek Chauvin had done nothing, the amount of fentanyl in George Floyd's bloodstream would have killed him anyway?

Yes. And I think, Dennis, you've hit on something that turns out to be very important, because the prosecutor in the opening— this is not a place you want to be as the prosecutor— he basically said that yes, it's true that Floyd may have had so much fentanyl in his system that it would have killed a normal person, but because he was a drug abuser for so long, he had built up a tolerance to it. That's really not—

I mean, that's absurd.

It's not where you want to be.

Oh, so that— so how does the jury decide?

They're going to hear a lot of experts. I think in the coming days they're going to get a lot of medical expert testimony on the issue of causation.

I'm putting you on the spot, and you have perfect right to say you don't know or you'll decide later. In your heart right now, do you think that Derek Chauvin killed him?

Not in the sense of murder. Um, I think there's a pretty good manslaughter case. Uh, I think there's a very weak, uh, depraved indifference to human life case. And the question of whether the force was so excessive that it should be criminal assault for purposes of, uh, murder in the second degree. Uh, I think that's what the case is really going to come down to. Uh, and that's a tough call right now.

I'm sorry, what's the tough call? Whether it's second-degree murder or manslaughter?

Whether it's excessive force that rises to the level of, of, of second-degree murder. Criminal assault. If they can prove this is a criminal assault, Dennis, then they're most of the way home to proving second-degree murder. Oddly, I think the proof of second-degree murder now is stronger than third-degree murder. I actually think third-degree murder is, um, frivolous almost at this point.

I mean, the depraved indifference charge?

Yeah, I think there's enough evidence that, uh, Chauvin did not do the, you know, worst-case scenario that's been described in the political narrative. There wasn't choking. He didn't You know, the way he applied this neck hold, it was not something that was against police procedure.

All right, one more question.

I don't see how they proved that.

Can I keep calling on you?

Yeah, of course. You can call me anytime, my friend.

Holy crow. That's great. We got to find out if he smokes cigars. I got to send him a gift.