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Speaker 1: This is Bloombird Law with June Grassoe from Bloomberg Radio.

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Speaker 1: Up across this country, thousands of people marched day after

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Speaker 1: day to protest the death of George Floyd in police

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Speaker 1: custody and racial injustice, And on Wednesday, many of them

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Speaker 1: heard something they've been waiting for. The Minnesota Attorney General,

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Speaker 1: Keith Ellison announced tougher charges against the former police officer

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Speaker 1: who was seen in the now notorious video pinning Floyd

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Speaker 1: to the pavement with his knee, and new charges against

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Speaker 1: the three other police officers involved. But Ellison warned about

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Speaker 1: the difficulties in getting a jury to convict police officers.

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Speaker 1: Trying this case will not be an easy thing. Winning

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Speaker 1: a conviction will be hard. In fact, County Attorney Freeman

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Speaker 1: is the only prosecutor in the state of Minnesota who

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Speaker 1: has successfully convicted a police officer for murder. Joining me

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Speaker 1: as former federal prosecutor Elie Honig of Loewenstein Sandler Elly,

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Speaker 1: Let's talk about how this was handled. Prosecutors initially charged

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Speaker 1: just the one officer with a lesser charge. Could they

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Speaker 1: have brought these new charges against all four officers from

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Speaker 1: the start and perhaps helped to quail some of the protests. Yeah, June,

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Speaker 1: they could have charged this as a second degree murder

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Speaker 1: from the start, And I wrote a piece the day

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Speaker 1: after the initial charge came out saying they should have

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Speaker 1: charged second degree from the start. I'm not sure what

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Speaker 1: impact that would have had on the riots. That's a

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Speaker 1: complicated question. So the initial charge came from, This is

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Speaker 1: important to understand from the Kennepin County Attorney, which is

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Speaker 1: sort of the local DA, essentially a county level prosecutor,

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Speaker 1: and I had some real questions about his approach. If

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Speaker 1: you looked at that complaint, the initial complaints, it was

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Speaker 1: baffling in some ways. He left out really important evidence

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Speaker 1: of guilt. For example, the initial complaint lists some of

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Speaker 1: the things that George Floyd said while he was pinned

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Speaker 1: down by the officers knee to his neck, but it

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Speaker 1: omits the most important things he said, which where I

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Speaker 1: can't breathe and please don't kill me. As a prosecutor,

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Speaker 1: that's inexplicable why you would leave that out. So I

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Speaker 1: had my doubts about, at a minimum, the competency of

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Speaker 1: the Hennepin County Attorney. Now a couple of days after that,

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Speaker 1: the Minnesota state Attorney General took over the case, which

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Speaker 1: I think was absolutely the right move, and then a

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Speaker 1: few days after that he added a second degree murder charge,

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Speaker 1: which I think was the right move. I think it's

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Speaker 1: supported by the evidence and the way that the a

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Speaker 1: G charge that second degree count. It's smart, it's clever,

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Speaker 1: it's tactically smart. There's two ways you can prove a

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Speaker 1: second degree murder charge under Minnesota law. The harder way

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Speaker 1: is to prove an intentional killing. That's not the way

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Speaker 1: he charged it. The easier way is to prove there

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Speaker 1: was an intentional assault that resulted in a killing, and

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Speaker 1: he charged it that way. So I think he's doing

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Speaker 1: what every prosecutor should do. You look for the highest,

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Speaker 1: most serious applicable charge that you feel confident you can prove,

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Speaker 1: and so at trial, the jury will have the choice

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Speaker 1: of finding the lesser included charge exactly. That's very important.

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Speaker 1: Understand people hear this phrase lesser included offenses. So it's

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Speaker 1: not going to be all or nothing yet or no

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Speaker 1: on that second degree count, and that's it. Even if

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Speaker 1: the jury finds not guilty or can't reach a verdict

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Speaker 1: of guilty on the second degree charge, they still have

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Speaker 1: the option to convict on the lower charges, including the

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Speaker 1: third degree charge, the same one that was in the

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Speaker 1: first complaint, and an even lesser manslaughter charge. So there

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Speaker 1: are sort of safety net options here against from the

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Speaker 1: prosecutor's point of view. Now, the other three officers have

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Speaker 1: been charged with aiding and abetting second degree murder and

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Speaker 1: aiding and abetting second degree manslaughter. In terms of proof

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Speaker 1: at trial, what does the prosecutor have to prove? So

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Speaker 1: aiding and abetting is an important concept. I used to

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Speaker 1: charge it all the time as a prosecutor, and essentially

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Speaker 1: the basic concept is a simple one. If you help

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Speaker 1: someone else commit a crime, even in some small way

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Speaker 1: knowingly you have to know what's going on, then you

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Speaker 1: too are just as liable as the person who commits

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Speaker 1: the crime with his own hands. Now the proof is

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Speaker 1: going to be trickier on the other three police officers,

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Speaker 1: because for each one of them, the prosecutors going to

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Speaker 1: have to prove more than just the fact that the

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Speaker 1: person was present. There's actually a defense called me or presents.

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Speaker 1: In other words, you will hear some of these police officers,

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Speaker 1: I believe, defend themselves by saying yes, I was there, Yes,

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Speaker 1: I was present, but I was merely present, meaning I

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Speaker 1: did not do anything to knowingly assist in this assault

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Speaker 1: and the resulting debt. And so the prosecutors are going

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Speaker 1: to have to really break it down for the jury

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Speaker 1: and say for each of these officers. They're not gonna

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Speaker 1: be able to lump of together. They're going to have

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Speaker 1: to say, officer a officer, the officer, see, here's where

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Speaker 1: he was at this moment, Here's what he did, Here's

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Speaker 1: what he was able to see and hear, Here's what

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Speaker 1: he did and did not do. And you could end

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Speaker 1: up with varying degrees of proof against the varying officers.

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Speaker 1: For example, one of the officers in the initial complaint,

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Speaker 1: it says he said, shouldn't we roll? Meaning Mr Floyd,

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Speaker 1: shouldn't we roll him on his side? And at one

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Speaker 1: point he says I should take his pulse. I mean,

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Speaker 1: that's gonna be a harder charge to make than against

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Speaker 1: some of the other officers. But things like helping to

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Speaker 1: pull George Floyd out of a car, which appeared to

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Speaker 1: have happened because the police car, the other officers who

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Speaker 1: knelt on top of George Floyd, that's going to be

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Speaker 1: the kind of evidence prosecutors are looking at. Let's talk

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Speaker 1: about the medical examiners reports, because there are two medical

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Speaker 1: examiners reports, and there are differences in them. They both

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Speaker 1: conclude it was homicide. Tell us about the differences and

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Speaker 1: how the defense might use that. Yeah, this is a boy.

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Speaker 1: As a prosecutor, you just sort of roll your eyes

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Speaker 1: and go off, No, not this, because you never want

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Speaker 1: competing medical examiners reports because then it becomes an issue

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Speaker 1: in the case when it doesn't really need to be. So,

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Speaker 1: as I understand, one of the reports concluded that the

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Speaker 1: cause of death was essentially a heart attack or some

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Speaker 1: combination of a pre existing medical condition along with the

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Speaker 1: physical actions taken by the police, that it was sort

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Speaker 1: of a combination. That was the original report, and then

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Speaker 1: the later report, the quote unquote independent report that the

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Speaker 1: family had done, says it was asphyxiation, suffocation, cut off

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Speaker 1: of oxygen or blood to the brain. That's I think

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Speaker 1: the more logical conclusion. So there will be a fight

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Speaker 1: over which one of those is real. But the bottom line, though,

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Speaker 1: is either way, the prosecution should be fine because even

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Speaker 1: if you use the original report, the one that defense

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Speaker 1: is going to like that or the mixed causes autopsy report,

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Speaker 1: as long as you can show that the officers actions

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Speaker 1: were a significant contributing factor. In other words, I would

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Speaker 1: argue to a jury, look, George Floyd wasn't going to

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Speaker 1: die on that day if not for what this police

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Speaker 1: officer did. This police officers actions, even under their theory,

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Speaker 1: combined with whatever helps conditions he had to cause the debt.

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Speaker 1: So legally that's enough. But it's a needless complication from

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Speaker 1: the prosecutor's perspective, and it gave me flashbacks to when

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Speaker 1: things like this would happen. You, Oh no, why couldn't

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Speaker 1: they just get it right? For first, the Minnesota A. G.

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Speaker 1: Keith Allison said that winning a conviction will be hard.

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Speaker 1: People will look at this video and say, oh, how

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Speaker 1: can this not be a slam dunk case. But in

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Speaker 1: the past, we've had lots of cases of police officers

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Speaker 1: exerting violence, perhaps leading to death against black men, and

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Speaker 1: the juries have acquitted the officers time and time again.

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Speaker 1: So how do you get over that? Chief Ellison? The

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Speaker 1: Attorney general is nobody should assume that this is going

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Speaker 1: to be an easy conviction. And I'll tell you why.

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Speaker 1: A couple of reasons Number one. Anyone who tells you

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Speaker 1: any jury trial is a sure win or a sure

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Speaker 1: loss doesn't know what they're talking about. Haven't tried enough cases.

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Speaker 1: No jury trial at certain juries are inherently unpredictable. They

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Speaker 1: are comprised of twelve everyday, regular, normal human beings, and

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Speaker 1: you have to get them unanimous beyond a reasonable doubt

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Speaker 1: in order to convict. I mean, and now, if you're

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Speaker 1: trying to get twelve people to agree on a pizza topic,

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Speaker 1: that that's hard to do, never mind on something like this. Second,

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Speaker 1: police cases tend to be even more unpredictable because people

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Speaker 1: tend to sometimes like the police. They're brought up to

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Speaker 1: respect and look up to the police. And also police

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Speaker 1: officers sometimes have defenses available to them that normal people

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Speaker 1: don't have, which is, he was trying to do his job,

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Speaker 1: he was in difficult circumstances. And then you add on

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Speaker 1: top of that the fact that this is going to

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Speaker 1: be a racially charged case and a massive media case,

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Speaker 1: and that throws in another element of uncertainty. So if

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Speaker 1: you're a prosecutor, you're right, June that there is, of

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Speaker 1: course the history of inexplicable and I think unjust verdicts.

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Speaker 1: In police cases, and especially in racially charged police cases.

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Speaker 1: The best you can do here as a prosecutor is

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Speaker 1: to keep your jury focused and just say, this is

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Speaker 1: not about all the hype that's out there in the world.

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Speaker 1: This is about this videotape and what these police officers

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Speaker 1: did to George Floyd on that corner on that day.

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Speaker 1: That to keep dry on the ball, focus on it,

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Speaker 1: focused on the evidence and that video above. All two

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Speaker 1: of the officers have had several misconduct complaints against them.

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Speaker 1: Will that come in a trial against them? That's gonna

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Speaker 1: be one of the motions that will likely be fought

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Speaker 1: out in pre trial motions. I think it's it depends

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Speaker 1: on the nature of those prior complaints. Now here's here's

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Speaker 1: the problem. The defense lawyers are gonna say, that's prejudicial,

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Speaker 1: meaning that's this is evidence of things that my my clients,

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Speaker 1: this former police officer had done, did it completely different times,

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Speaker 1: completely different places. It's just intended to inflame the jury

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Speaker 1: and tell the jury he's generally a bad guy. Um,

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Speaker 1: when that's not the relevant legal question. The relevant legal

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Speaker 1: question is did he commits this crime on this state?

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Speaker 1: I think the prosecutor may are you. Well, but it's

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Speaker 1: admissible because it goes to a broader pattern of conduct

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Speaker 1: that goes to his m so to speak, his motus operandi.

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Speaker 1: But if I had to guess, most judges are going

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Speaker 1: to keep that kind of evidence out there, going to

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Speaker 1: say it's undo, be prejudicial to the defendant, and it's

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Speaker 1: it's not probitive enough. It doesn't tell you enough that's

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Speaker 1: relevant about what happened on the date of the charge crime.

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Speaker 1: But that's going to be a heated battle in the

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Speaker 1: pre trial motions for sure. So, um, the US Justice

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Speaker 1: Department Civil Rights Division is also investigating Floyd's death. What

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Speaker 1: charges might they be looking at? Yeah, so I think

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Speaker 1: they are looking at a charge called deprivation of civil rights.

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Speaker 1: It's a little misleading because the word civil is in

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Speaker 1: the title. But it is a crime. And here's what

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Speaker 1: the crime is. It is a crime for somebody acting

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Speaker 1: under color of law. And that just means anyone exercising

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Speaker 1: any public authority, police officers, unquestionably qualified. If a person

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Speaker 1: acting under color of law deprive somebody, willfully deprive somebody

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Speaker 1: of a constitutionally protected right. Now hear you would think, well,

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Speaker 1: what's the right I mean it's the right to be alive.

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Speaker 1: But the technical way you would phrase that would be

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Speaker 1: the right to be free of unreasonable police seizure. So

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Speaker 1: we do see cases like this. Sometimes the d o

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Speaker 1: J has brought charges against police officers officers for using

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Speaker 1: excessive sometimes I think famously they declined to do so

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Speaker 1: in the Eric Garner case. Um, but they've given off

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Speaker 1: d o J has given off pretty strong signals that

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Speaker 1: they intend to charge it. That's how I read the

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Speaker 1: statements that are coming out of d o J. And

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Speaker 1: so also important to know you can have state charges

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Speaker 1: and federal charges simultaneously, or for or for the same crime.

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Speaker 1: That's not a double jeopardy problem. The U. S. Supreme

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Speaker 1: Court actually just ruled last year in that you can

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Speaker 1: have charges in the coming from the federal government's Department

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Speaker 1: of Justice and the state government as well. And I

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Speaker 1: think it's likely we'll see that. So that's another sort

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Speaker 1: of safety net, I guess, um for people who want

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Speaker 1: to see a conviction here and believe that that's that's

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Speaker 1: what justice requires. Are are a federal civil rights charges

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Speaker 1: more almost more of a political decision or partially a

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Speaker 1: political decision, because as you mentioned, Eric Garner, they didn't charge,

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Speaker 1: and they didn't charge um Freddy Gray's death in Maryland.

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Speaker 1: In so some of the very controversial ones we didn't

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Speaker 1: see federal civil rights charges. Well, the no prosecutes, no

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Speaker 1: prosecutorial decision is ever supposed to be political, And I

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Speaker 1: think every every prosecutor in office will tell you that

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Speaker 1: this is all about the facts in the law, and

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Speaker 1: that's as it should be. As a practical matter. Prosecutors

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Speaker 1: are human beings. I mean, I was a prosecuted for

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Speaker 1: fourteen years. Everyone reads the papers, everyone watches TV and

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Speaker 1: listens to the radio. And you wouldn't beat human if

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Speaker 1: you did if if you didn't consider, um, what's the

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Speaker 1: effect of this going to be in in the real world.

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Speaker 1: Another thing to keep in mind is every case stands

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Speaker 1: on its own merits in different cases have different levels

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Speaker 1: of sort of culpability, and um, you know, you could

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Speaker 1: well see a different determination made now. I mean, look,

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Speaker 1: this case is similar in a lot of ways in

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Speaker 1: the Eric Garner case, but it's not identical. And same

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Speaker 1: goes with the Freddie Gray case. Also, you have different

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Speaker 1: people making the decisions. I mean, right, the Freddie Gray

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Speaker 1: case was under a different administration. Eric Garner was under

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Speaker 1: this presidential administration, but a different attorney general, so you

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Speaker 1: have different decision makers. So, UM, I think you're right

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Speaker 1: to know, and it's important to be aware of the

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Speaker 1: history of the Justice Department in deciding to bring these

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Speaker 1: kind of charges or declining. Um. And I will obviously

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Speaker 1: see what they do here. But I'm fairly confident, and

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Speaker 1: this is not based on inside information. This is just

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Speaker 1: based on reading the tea leaves from the public statements.

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Speaker 1: I'm fairly confident they will charge UH, at least officers Chauvin.

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Speaker 1: President Obama called on mayors to review their police department's

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Speaker 1: use of force policies. Does it depend on states calling

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Speaker 1: for new legislation to overhaul police procedures to ban show colds?

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Speaker 1: Is that where it starts? So? I worked on police

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Speaker 1: reform for five years as a prosecutor. When I was

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Speaker 1: with the new Jersey Attorney General, we worked very closely

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Speaker 1: with police departments on reform. I don't think there's any

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Speaker 1: one answer. I think it needs to start at the

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Speaker 1: highest levels, from from our elected officials in Washington, d C.

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Speaker 1: But the real action, the real rubber hits the road.

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Speaker 1: I believe at the local levels of state, county, and

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Speaker 1: local level. And there there are a whole range of

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Speaker 1: readily available police reforms out there, whether it's changing your

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Speaker 1: use of force policy, when is it okay to use

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Speaker 1: what level of force up to an including lethal force?

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Speaker 1: Can you you know can UM? Chokeholds and strangleholds should

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Speaker 1: be I think barred in and they are barred in

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Speaker 1: some but not all police departments. UM use of body

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Speaker 1: warrant cameras, UM, training police officers to recognize individuals with

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Speaker 1: mental health problems. UM. I mean there there's just there's

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Speaker 1: there's many reforms out there that can be adopted. I

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Speaker 1: think legislation is part of it, I think, but but

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Speaker 1: not by itself the answer. I think the real leadership

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Speaker 1: has to come from police leaders, from mayors, from local prosecutors.

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Speaker 1: And the key thing is building relationships between those leaders.

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Speaker 1: And you're real community leaders, You're real clear g your

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Speaker 1: people who the community will listen to. Because when a

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Speaker 1: crisis like this happens, and I'm proud to say in

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Speaker 1: New Jersey we've actually had a very good response. We've

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Speaker 1: had enormous spirited protests in Newark and Camaden around the state,

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Speaker 1: and very little violence and I think a big reason

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Speaker 1: for that is because we have strong police leaders, like

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Speaker 1: strong local leaders, they already have the relationships. You can't

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Speaker 1: just pick up the phone and try to figure out

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Speaker 1: who the leader of the religious community is in New

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Speaker 1: York for the first time when this happens, you have

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Speaker 1: to already know each other. And you can see that

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Speaker 1: happening a bit in New Jersey, and I think there's

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Speaker 1: a good model there to follow. Thanks for being on

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Speaker 1: Bloomberg Law Alley. That's former federal prosecutor Ellie Honig of

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Speaker 1: Lowenstein Sandler. And that's it for this edition of Bloomberg Law.

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Speaker 1: Remember you can always get the latest legal news by

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Speaker 1: going to our Bloomberg Law podcast. You can find them

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Speaker 1: on iTunes, SoundCloud for Bloomberg dot com, slash podcast Slash Law.

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Speaker 1: I'm John Rossel. Thanks so much for listening, and remember

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Speaker 1: to tune to the Bloomberg Law Show weeknights. Attend them

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