Chauvin defense wants probation instead of prison time

Derek Chauvin has no criminal history and would likely be targeted for prison violence, his attorney argued


By Chao Xiong and Rochelle Olson
Star Tribune

MINNEAPOLIS — Former Minneapolis police officer Derek Chauvin should receive probation instead of prison time for murdering George Floyd because he has no criminal history, he has a strong support network and he would likely be targeted for violence in prison, his attorney argued in a new court filing.

If the court refuses to grant probation at Chauvin's June 25 sentencing, wrote defense attorney Eric Nelson, it should hand down a lower prison term than recommended by state sentencing guidelines.

"Mr. Chauvin asks the Court to look beyond its findings, to his background, his lack of criminal history, his amenability to probation, to the unusual facts of this case, and to his being a product of a 'broken' system," Nelson wrote in a sentencing memorandum filed Wednesday.

Nelson did not elaborate further on what he meant by a " 'broken' system."

The Minnesota Attorney General's Office, which prosecuted Chauvin, also filed a memorandum Wednesday arguing for a 30-year prison term.

"Such a sentence would properly account for the profound impact of defendant's conduct on the victim, the victim's family, and the community," the prosecution wrote.

Chauvin "brutally murdered" Floyd, abusing the authority conferred by his badge, prosecutors wrote. "And his conduct shocked the nation's conscience. No sentence can undo the damage defendant's actions have inflicted. But the sentence the court imposes must hold defendant fully accountable for his reprehensible conduct."

Jurors convicted Chauvin on April 20 of second-degree unintentional murder, third-degree murder and second-degree manslaughter.

Chauvin will be sentenced on the highest count, which carries a statutory maximum of 40 years in prison. However, state sentencing guidelines call for a prison term between about 10 1/2 and 15 years, with a presumptive sentence of 12 1/2 years, for someone with no criminal history like Chauvin.

Prosecutors previously filed notice that they intended to seek a higher-than-recommended prison term based on five aggravating factors they presented to the court for consideration.

Hennepin County District Judge Peter Cahill reviewed the prosecution's proposals and in May determined that there were four aggravating factors: Chauvin abused his position of trust and authority, he acted with particular cruelty, he committed the crimes in front of children and Chauvin acted as part of a group of three or more persons. Cahill did not find that Floyd was "particularly vulnerable," a proposed aggravating factor that prosecutors had offered up.

Prosecutors wrote in their Wednesday memo that under Minnesota Supreme Court guidance, a single aggravating factor allows a judge to impose a sentence twice as long as the upper limit of the presumptive range.

" … Each of these aggravating factors reinforce and exacerbate the severity of the others: It is especially serious, for example, when a defendant's abuse of authority or particular cruelty is witnessed by children, as it was in this case," prosecutors argued. " … Here, the existence of four separate aggravating factors reflects the seriousness of defendant's conduct."

Chauvin knelt on Floyd's neck for 9 minutes and 29 seconds on May 25, 2020, while Floyd repeatedly said he couldn't breathe and begged for his life. A horrified group of bystanders, including several children, looked on, many of them begging for Chauvin and his three colleagues to relent.

Nelson wrote that Chauvin "is not the average offender" and had led a "hardworking, law abiding life" up to his encounter with Floyd.

"Mr. Chauvin still has the ability to positively impact his family and his community," Nelson wrote. " … In the eyes of the public, Mr. Chauvin has been reduced to this incident, and he has been painted as a dangerous man … However, behind the politics, Mr. Chauvin is still a human being."

According to Nelson's memo, Chauvin should be sentenced to probation and "time served," or the time he has already spent in custody, because of additional factors: he complied with the court's orders when he bonded out of jail while awaiting trial, showing that he can succeed on probation; and he is 45 and has been preliminarily diagnosed with heart damage that could end his life earlier "like many ex-law enforcement officers."

Nelson argued that Chauvin has the support of his parents, sister and stepparents, and is "still supported" by his ex-wife, who filed for divorce soon after the incident, and her family and her adult children from a different relationship.

"In spite of his mistakes, Mr. Chauvin has demonstrated that he has a capacity for good and that he has the discipline to consistently work toward worthwhile goals."

He has also received "thousands" of letters of support from people across the world, Nelson wrote.

In the event that Cahill rejects probation, a lower sentence is more appropriate, Nelson argued without specifying a number.

"Here, Mr. Chauvin was unaware that he was even committing a crime," Nelson wrote. "In fact, in his mind, he was simply performing his lawful duty in assisting other officers in the arrest of George Floyd … Mr. Chauvin's offense is best described as an error made in good faith reliance [on] his own experience as a police officer and the training he received — not intentional commission of an illegal act."

Nelson noted that many previous defendants sentenced for second-degree unintentional murder in recent years received lower terms because no "dangerous weapon" was used.

Nelson also argued that a higher prison term based on aggravated factors was unwarranted because there was no evidence Chauvin inflicted "gratuitous" pain or cruelty on Floyd, an abuse of power typically involves sexual or domestic abuse, Chauvin's three former colleagues haven't been convicted of crimes so the group aggravating factor cannot apply, and because the aggravating factor involving children typically pertains to children who are present at a crime and cannot escape — not child bystanders as in the Chauvin case.

Prosecutors countered the defense's argument that the duration of the crime was brief and should not influence his sentencing.

"Against the overwhelming weight of the evidence, defendant argues that his conduct was not particularly cruel because the assault" on Floyd occurred over "a very short time," and Chauvin's conduct "involved no threats or taunting," prosecutors wrote.

Prosecutors noted that Cahill already found that Chauvin killed Floyd "slowly," and that the "prolonged nature of the asphyxiation was by itself particularly cruel."

On Wednesday, Nelson also filed a 64-page memorandum seeking a new trial in a new location on several grounds ranging from prosecutorial misconduct to juror bias.

Chauvin's former colleagues — J. Alexander Kueng, Thomas Lane and Tou Thao — are scheduled to be tried next March in state court on charges of aiding and abetting second-degree murder and manslaughter.

All four former officers also face charges in federal court for allegedly violating Floyd's civil rights.

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