Capitol Retort: Reinstated charge; grievous injury; big event

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Question 1: A third-degree murder count has been reinstated against former police officer Derek Chauvin. It’s a charge that prosecutors fought hard to include and the defense tried to keep out of the George Floyd murder trial. What’s your impression of what this development means for the case?

Kevin Burke, retired Hennepin County District Court judge: It’s very difficult to determine what that means, at least until the opening statements. Because now you’ve got the rubber hitting the road. It’s plausible that this will create a weakness for the state, in that they have got a bunch of lawyers in the courtroom and a lot of investigation and they don’t know what happened. That is, they have three different charges that have different elements. My experience is the more simple the message from either the prosecutor, or the plaintiff in a civil case as to what happened, generally speaking, the more effective the presentation.

Brett Corson, Fillmore County Attorney: Anytime you can include alternative arguments or theories to your case, it is only beneficial. If I can include a charge and make the argument that, “Look, if you do not feel that we have proven these elements beyond a reasonable doubt, then we have this other charge, which has some different elements that you should look at.” Sometimes, if it’s a less restrictive theory or it has different elements, that is very helpful. So I think it’s helpful to the state. And it may be something that, from a defense perspective, you didn’t want to see happen.

Jeff Hayden, Fredrikson & Byron government relations, former state senator: I think it gives more opportunity for jurors to contemplate what happened. It’s clear that Chauvin killed George Floyd. But the law is the law. So the more opportunity that jurors have to define what that is, the better for justice.

Annette Meeks, CEO, Freedom Foundation of Minnesota: All I know is what I read today—a pretty good discussion in the Star Tribune. So I’ll couch it in those terms. Until the state Supreme Court rules on the Noor trial, that is kind of a risky prosecution. If [third-degree murder] is ultimately what Chauvin is convicted of and the Supreme Court ultimately rules that that charge is not valid, he could walk away. But I can see where the prosecution wants to find them guilty of something. They’re very worried, so they wanted to have all outlets available. [Editor’s note: Ex-Minneapolis police officer Mohamed Noor, who was convicted of third-degree murder for killing Justine Ruszczyk Damond in 2019, has appealed the state Court of Appeals’ decision upholding his conviction. The Minnesota Supreme Court granted his petition for review on March 1.]

Nick Zerwas, lobbyist, former GOP House member: I think the stances of both the prosecution and the defense make perfect sense. I think that charge is generally viewed as the likely compromise verdict from a split jury. A jury that feels compelled to “do something,” may look at the third-degree murder conviction as their way out.

Question 2: A bill approved by Senate Judiciary creates mandatory minimum 25-year sentences for assault with deadly force against police officers, prosecutors, judges or corrections officers inflicting grievous injury. That’s greater than the penalty for the same crime committed against regular citizens. Why do you think that is either justified or not?

Burke: I am not so in favor of that approach to criminal justice. I think it’s a very hard message. I’ll just speak as a judge. I mean, it’s really difficult to end up saying that my life is worth more than the reporter for Minnesota Lawyer.

Corson: I’ve been to Iraq and Afghanistan and oftentimes, around courthouses or police stations, we would put up big blockades and walls because those are the people that will get attacked. If you want to destabilize the country or destabilize confidence in your democracy, you’ll often attack the decision-makers, or those people who are trying to enforce the law. So, to maintain stability, you have to discourage those who try to attack the institutions and those who represent the institutions. This [bill] includes that it has got to involve bodily harm or grievous bodily harm. So I think it’s completely justified. [Editor’s note: Corson served as a major in the U.S. Army as part of a Minnesota civil affairs battalion. In Afghanistan, he served under the Army’s 10th Mountain Division. In Iraq, he served under its 2nd Infantry Division.]

Hayden: I think we should look at it through an equal lens. Of course, I don’t want anything to happen to corrections officer, police or other law enforcement officials any more than I want it to happen to citizens. I really wish my friends in the GOP—certainly those that were pushing this bill—were just as passionate about making sure that penalties were appropriate for law enforcement who harm citizens, or for just for citizens in general.

Meeks: I’m not sure that we want to put our elected officials and others on pedestals like that. Yes, they deserve protection. But my goodness, a life is a life. I think we should treat everybody equally.

Zerwas: We ask certain members of our society to put themselves in direct contact with known bad actors. And in doing so, those individuals take upon themselves risks of greater harm. This is an attempt to balance that out. Anybody who watched the Senate Judiciary hearing and the press conference prior to that from Officer [Arik] Matson and his wife [Megan] would have seen the impact that type of unbelievable assault has on an individual who got up that morning and just went to work. It was an unbelievably moving presentation. It makes it easier to understand how the bill seems to be moving forward so quickly in the Senate.

Question 3: President Joe Biden says everyone will qualify for COVID-19 vaccines by May 1, it seems possible that by mid-summer we could maybe start living relatively normal lives again. If we’re cleared to take part in unrestricted events involving lots of people—attending movies or concerts, for example—what’s the first big event you’re going to take part in?

Burke: I really haven’t given any thought to that, mainly because I don’t generally go to a lot of big events. I might go to a Twins game. Once a season, I go to a Vikings game. I suppose that might happen in the fall. But, frankly, watching football is better on TV.

Corson: It’s going to be a family event, because we put off Easter, Thanksgiving and Christmas for my larger family. There are seven kids in both my family and my wife’s family, and we’ve always tried to have the bigger family gatherings, just so we maintain that contact. So it will be a big family gathering on her side and my side.

Hayden: It’s probably a tie between either some big music festival that comes to town, or a nice afternoon at the Twins stadium. I’m also really looking forward to festivals, like Juneteenth and other community-based, ethnic festivals that will really allow people to come back and rejoin society. I’m really looking forward to seeing lot of friends and family that I haven’t seen in a long time.

Meeks: Going to a Twins game. I would guess that last year was the first year in my entire life for which I have recollection that I did not go to a professional baseball game. That’s something you kind of miss. It’s just a rite of summer. And as a season ticket holder, I just really, really felt it a lot. It’s not the same watching it on TV. When you live a mile away, you want to be there.

Zerwas: Oh, so this is an easy one! In Illinois, just outside Chicago, they are rescheduling Alanis Morissette’s tour that was set to take place there last summer. It was canceled. A group of friends and I are set to travel to Chicago for that concert of the album “Jagged Little Pill,” 25 years later [on Sept. 11]. I absolutely cannot wait.