The Justice Department has secured indictments of the four former Minneapolis police officers involved in George Floyd’s arrest and death. The three-count indictment unsealed Friday names Derek Chauvin, Thomas Lane, J. Kueng and Tou Thao.The indictment creates as new front for the officers and a type of insurance for state prosecutors if they fail to convict the three remaining officers (or Derek Chauvin is given a new trial).
I have previously written that convictions of officers like Lane could be challenging as opposed to Chauvin who was the principle actor. I stated from the outset that Chauvin could legitimately be convicted even though I viewed the stronger charge to be manslaughter, not murder.
This allows for the officers to face federal changes based on the same conduct. Indeed, that is why these collateral charges have been challenged in the past as raising double jeopardy claims.
The Court has adopted a highly permissive approach that has fueled the increased use of parallel federal prosecutions. The foundation for this rule was laid in Blockburger v. United States, 284 U.S. 299 (1932), where the Supreme Court held that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.” The Supreme Court has also emphasized that, as separate sovereign powers, the federal government retains the right prosecute for its own crimes. In United States v. Cruikshank, 92 U.S. 542 (1875), stressed that:
“It is the natural consequence of a citizenship which owes allegiance to two sovereignties, and claims protection from both. The citizen cannot complain, because he has voluntarily submitted himself to such a form of government. He owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts for disobedience to its laws.”
The charges come after Chauvin filed a request for a new trial, including allegations of the denial of an unbiased jury. One issue could be the alleged false statements by a juror about his prior involvement in protests.
The federal charges mean that, even if Chauvin gets a new trial or the other former officers are acquitted, they will remain subject to federal charges.