In the last couple of months, two major cases have had many of us glued to the television/radio/internet: the Derek Chauvin case (the police officer who killed George Floyd), and the Bill Cosby case (the famed comedian accused of numerous sexual assaults). Many have been asking: how can this be? Today’s explainer will (hopefully!) answer that question for each case.
In today’s newsletter, I am sticking to the criminal legal questions, not venturing into the human toll of these decisions. There is a lot of incredible reporting on these cases, engaging deeply with the human consequences and impacts. I try to refer to those pieces throughout this edition so you can check out that work for yourself.
My goal today is to help you engage with that reporting with an understanding of the procedural and practical stuff that brought us these results. Kind of like the moment where Dorothy pulls back the curtain to reveal Oz is a small aging man, I hope to pull back the curtain on the procedures, practices, and laws that impact all of us so deeply so we can change the status quo.
The Chauvin case
The process of charging a police officer with murder (or manslaughter) is hampered by Supreme Court of the U.S. (SCOTUS) and state supreme courts precedent (binding law made by the courts) and legislation that protect police officers from both civil lawsuits and criminal charges. Qualified immunity and the many other factors associated with charging police officers will be the subject of many newsletters in the future because they deserve intensive coverage. Suffice it to say, even charging Derek Chauvin with crimes and having a trial was a remarkable event.
The primary question I received from people about this case was: How can Derek Chauvin be charged and convicted of three crimes that seem, on their face, to be almost the same at the same time?
What’s in a name?
Let’s start with the name of this case because the name tells us a lot: State of Minnesota v. Derek Michael Chauvin. Right off the bat, the case name tells us that this case is (most likely) a criminal case that lives in the state court and a state-level prosecutor is bringing charges against Derek Chauvin.
In the legal system, a crime is a violation of “public codes of behavior as embodied in the laws,”1 and therefore, it is the state (or country, county, or city) that censures that violation. Essentially, the state brings charges against an individual as a form of collective condemnation of that person’s action. While the state may work with the victim of the crime, the state does not represent that victim. In its essence, the state is representing all of us when it brings criminal charges against a person. That is why the case name begins with: State of XXX v. YYY, City of XXX v. YYY, or United States v. YYY.
The state of Minnesota brought these charges against Chauvin, so we know that any and all things related to this case will take place in a state court, specifically Hennepin County.
The defendant in this case is Derek Chauvin. He is the one being charged with violating a public code of behavior.
Next, because this case was brought forward by a Hennepin County Attorney, Minnesota state law is applied, not federal law. The County Attorney charged Chauvin with three crimes under Minnesota law:
third-degree murder, and
For an excellent outline of each of these laws, check out this USA Today article or this ABC10 article.2 As you can see by these descriptions, the crimes appear to be very similar. So, how can the county attorney charge Chauvin with all three?
Why Minnesota prosecutors could charge Chauvin with all three crimes
Under Minnesota law, a prosecutor can charge a person with multiple criminal violations at the same time when “person's conduct constitutes more than one offense.”3 The Minnesota Supreme Court wrote, “[I]t must be kept in mind that the type of conduct specified must involve a multiplicity of violations rather than a single violation resulting from a single criminal act.”4 In other words, the person’s actions must violate multiple laws in order for a prosecutor to charge them5 with multiple crimes based on the same set of actions. The prosecutor must bring all of those charges in one case or they may trigger a violation of the prohibition of double jeopardy.6
In this case, the Hennepin County prosecutor needed to charge Chauvin with the two murder charges and one manslaughter charge at the same time because it was all related to the same conduct—the killing of George Floyd. She could not charge him with second degree murder of George Floyd today and then six months later charge him with manslaughter for the death of George Floyd. Furthermore, Chauvin’s actions over the course of ten minutes violated multiple laws, thus enabling the prosecutor to bring the three separate charges in one case.
Additionally, under Minnesota law, the jury can find the person guilty of all of the charges and the person’s criminal record would show that they had been convicted of multiple crimes in one case. However, the court will only sentence the person based on the most serious offense for which they were convicted. In State of Minnesota v. Johnson, the Supreme Court of Minnesota noted:
The policy underlying this objective appears to be that, where the statute is applicable and defendant is convicted of multiple offenses, as a practical matter a single sentence will necessarily take into account all violations, and imposing up to the maximum punishment for the most serious offense will include punishment for all offenses.7
To punish someone multiple times for the same conduct is a violation of the prohibition against double jeopardy. To convict on all charges, but only sentence based on the most serious charge, the Court prevents the possibility of a double jeopardy claim.
How the sentencing worked
In Chauvin’s case, the jury convicted him on all three charges.8 The statutes under which Chauvin was convicted each outlined a maximum sentence allowed; however, Minnesota also has sentencing guidelines that a judge can follow when determining how long to sentence someone who has been convicted of a crime (see image below). Sometimes the statute and the guidelines match up, and sometimes they do not, but, in most cases, the judge has the discretion to adhere to one or the other standard.
To make a sentencing decision, judges take into account the person’s criminal history, the severity of the crime, and other aggravating or mitigating factors. Aggravating factors might be lack of remorse or that the crime occurred in front of a child. Mitigating factors might be demonstrated potential rehabilitation by the person convicted or addiction-related issues.
Two months after a jury convicted Chauvin on all three charges, the presiding judge held a sentencing hearing, after he considered many factors, including that the statute for unintentional second degree murder carries a maximum sentence of 40 years, the jury convicted Chauvin on all three charges, and Chauvin had no criminal history. The judge sentenced Chauvin to 22 ½ years (or 270 months) in prison based on the second degree murder charge and the sentencing guidelines (see above).
I hope this explanation helps you make more sense of the great reporting done about the Chauvin case and how it ended the way it did. For a robust discussion on the sentencing, check out this Vox article and/or this Brookings Institute post. Additionally, the Associated Press published a number of explainers throughout the trial here.
Finally, since Chauvin was sentenced in state court, the Department of Justice (DOJ), a federal agency, brought evidence to a federal grand jury and indicted Chauvin and the three other officers involved in the murder of George Floyd.10 The DOJ also indicted Chauvin for violating the civil rights of a 14-year-old in Minneapolis.11 If these cases go to trial, they will be held in a federal district court, likely in Minneapolis. Look out for a future explainer on those federal charges.
The Bill Cosby Case
As you likely saw or heard, Cosby was recently released from prison after serving a little over three years because his conviction for committing sexual assault was overturned by the Pennsylvania Supreme Court (SCOPA). How did this happen?
What’s in a name?
First, let’s look at the case name: The Commonwealth of Pennsylvania v. William Henry Cosby, Jr. The Commonwealth of Pennsylvania, through a district attorney in Montgomery County, brought criminal charges against Cosby for violating a Pennsylvania criminal law. This puts us in a Pennsylvania state court, adhering to Pennsylvania state law.
The facts and travel of the Cosby case
Here’s what happened in a nutshell: Andrea Constand alleged that Cosby sexually assaulted her in 2004 at his Montgomery County home. After the alleged assault, Constand returned to her home in Canada. A year later, in 2005, she reported the assault to her local law enforcement and they, in turn, alerted law enforcement in Montgomery County, PA. An investigation ensued. (For a full accounting of the facts, take a look at the first few pages of the SCOPA’s decision. It lays out the facts in great detail.)
Following the investigation, the then-District Attorney of Montgomery County determined that due to a number of factors, he did not think the State could prove by a reasonable doubt12 (the criminal standard of proof) that Cosby had sexually assaulted Constand. The DA thought that she would have a better outcome with a civil remedy that requires a lower burden of proof, a preponderance of the evidence,13 which means she could file a lawsuit against him in civil court and if she won, she would receive a financial payout from Cosby. (The civil case name was: Constand v. Cosby. See the difference in the case names?) Additionally, the DA decided that if Cosby feared criminal prosecution, he could exercise his Fifth Amendment right against self-incrimination and refuse to testify or be deposed in Constand’s civil lawsuit. Cosby had every right to do so.
In making this determination, the DA exercised his prosecutorial discretion. In regard to prosecutorial discretion, SCOPA stated:
Charging decisions inhere within the vast discretion afforded to prosecutors and are generally subject to review only for arbitrary abuses.
A prosecutor can choose to prosecute, or not.
A prosecutor can select the charges to pursue, and omit from a complaint or bill of information those charges that he or she does not believe are warranted or viable on the facts of the case.
A prosecutor can also condition his or her decision not to prosecute a defendant. For instance, a prosecutor can decide initially not to prosecute, subject to possible receipt or discovery of new inculpatory evidence.
Or, a prosecutor can choose not to prosecute the defendant at the present time, but may inform the defendant that the decision is not final and that the prosecutor may change his or her mind within the period prescribed by the applicable statute of limitations.
Similarly, there may be barriers to a prosecution, such as the unavailability of a witness or evidence, which subsequently may be removed, thus enabling a prosecution to proceed.
Generally, no due process violation arises from these species of discretionary decision-making, and a defendant is without recourse to seek the enforcement of any assurances under such circumstances.14
(NOTE: I added the bullet points for easier reading).
In other words, the prosecutor has the power to decide if they will bring charges and what charges they will bring, but they can also choose not to bring charges (this is called “declination) or to dismiss a case once it has been initiated.
The Fifth Amendment to the United States Constitution, which is applicable to the States via incorporation though the Fourteenth Amendment, commands that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. CONST. amend. V. The right to refuse to incriminate oneself is an “essential mainstay” of our constitutional system of criminal justice.15
To put it another way, each of us has the right to refuse to testify or participate in a deposition if doing so would cause us to reveal our own criminal conduct for which criminal charges could be brought against us. Cosby could have exercised that right in the civil case.
In order to remove Cosby’s ability to exercise his right to protect against self-incrimination, the DA decided to tell Cosby and Constand’s lawyers that he would not criminally charge Cosby for the sexual assault of Constand, thus Cosby could not claim Fifth Amednment protections in the civil case. The DA then issued a signed press release to that effect. Cosby went on to participate in depositions in the civil case, making potentially incriminating statements upon court order. Constand and Cosby settled the case with Cosby paying Constand over $3 million.
Ten years later, just ahead of the statute of limitations (the time limit on when criminal charges may be filed), a subsequent Montgomery County DA charged Cosby for the sexual assault of Constand.
Cosby tried to fight the criminal charges because of the previous DA’s promise not to prosecute.16 The trial court, however, decided that if the DA had intended to provide immunity for Cosby, allowing Cosby to testify without concern of prosecution, then the DA would have come before the court and requested “transactional immunity.”17 Because the DA only issued a press release, he did not intend to immunize Cosby. The court decided thus despite the DA’s testimony that he did permanently decide not to prosecute and issued the press release with the intention of blocking Cosby’s ability to plead the Fifth.
Further, Cosby never mentioned on the record that he was participating in the deposition because of the DA’s promise, thus Cosby wasn’t relying on the DA’s promise when he chose to incriminate himself. And, even if he did, that reliance was not reasonable because the DA had put nothing in writing . . . except the press release. Therefore, the criminal case can go forward.
In both criminal trials, Cosby’s testimony in Constand v. Cosby (in 2005) was used against him. The first trial ended in a mistrial because the jurors could not agree on innocence or guilt. The second ended in a conviction, including a three-to-ten year prison sentence, a designation of Cosby as a “sexually violent predator” (which would hold serious consequences for Cosby as he approached release from prison), and a requirement to register on Pennsylvania’s sex offender registry.18
Cosby’s Appeals for Justice
Following the conviction, Cosby’s defense team filed for an appeal—a right afforded to all defendants. Cosby argued that the previous DA had promised not to prosecute and Cosby had relied on that promise when he participated in the depositions in the civil case and incriminated himself. Because he did this, Cosby urged that his conviction be vacated (removed) and that the prosecutor not be able to try him a third time.
The Pennsylvania appellate court heard arguments and agreed with the trial court’s decision. In sum, the appellate court agreed that if the DA had intended to protect Cosby from prosecution, he would have sought a court order for transactional immunity. He didn’t, therefore, there was no immunity. Cosby willingly and knowingly incriminated himself. The conviction stands.
Cosby’s team appealed again to SCOPA, the highest court in Pennsylvania. SCOPA reversed the two lower courts’ decisions and vacated the conviction, meaning that it decided the lower courts were wrong and removed Cosby’s conviction. Here’s why.
Prosecutors hold immense power (as noted above) and courts only interfere with prosecutorial discretion when there appears to be “arbitrary abuses” of that power.19 “In fact, the prosecutor is afforded such great deference that [SCOPA] and the [SCOTUS] seldom interfere with a prosecutor’s charging decision.”20 But, SCOPA chastised:
[W]hen a prosecutor makes an unconditional promise of non-prosecution, and when the defendant relies upon that guarantee to the detriment of his constitutional right not to testify, the principle of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be enforced.21
Translation: When a prosecutor (with immense power) makes a promise to a defendant (with little power) and the defendant depends on that promise to protect them when they forgo a constitutional right, the prosecutor has to follow through. The prosecutor cannot renege on that promise once the defendant has taken some action, one that is harmful to them, that they would not have taken but for the prosecutor’s promise. If they do, it violates the due process rights of the defendant.22
In Cosby’s case, SCOPA determined that the original DA made a permanent decision not to prosecute Cosby in the Constand sexual assault case and, in issuing the press release, made that promise public and in writing. Therefore, it was reasonable for Cosby’s lawyers, and for Cosby himself, to understand that decision as a promise not to prosecute, and to rely on that promise as protection from prosecution if Cosby testified in the civil case.
Additionally, and most importantly to SCOPA, Cosby relied on that promise when he in fact participated in the civil case, making self-incriminating statements he would likely not have made otherwise. SCOPA averred:
Most significantly, Cosby, having maintained his innocence in all matters and having been advised by a number of attorneys, provided critical evidence of his recurring history of supplying women with central nervous system depressants before engaging in (allegedly unwanted) sexual activity with them—the very assertion that undergirded Constand’s criminal complaint.23
To pull all the pieces together:
The DA made a promise not to prosecute.
In response, Cosby could not invoke his Fifth Amendment right.
He was ordered to answer all questions by the civil court judge.
He did, in fact, answer the questions.24
He self-incriminated because he, and his defense lawyers, reasonably relied on the promise of the DA not to prosecute.
As soon as Cosby did so, he relied on that promise to his detriment.
Therefore, the DA’s office induced the self-incrimination. They put Cosby in that position.
As such, it was the responsibility of the DA’s office to honor that promise and to comport with due process.
Once SCOPA determined the above, one question remained: how does the Court remedy the wrong done to Cosby? As the Court stated, “The impact of the due process violation here is vast. The remedy must match that impact.”25
SCOPA considered two options:
trying Cosby a third time, but ensuring that nothing from his testimony in the civil case could be used in that trial; or,
overturning Cosby’s conviction altogether and setting him free.
Here’s what’s interesting, or at least it’s interesting for a law nerd like me: The court brought in elements from contract law to help justify its decision in a criminal case.26
In contract law, when a person reasonably relies on the promise of another person, and relies on that promise to their own detriment (meaning they did lose or stand to lose something), then the other party must do what they said they were going to do (perform). If they don’t, the harmed party can sue. If the harmed party wins, the remedy is usually specific performance, where the court requires the losing party to follow through as promised to help make the other party whole, or return the other party to their position before the broken promise.
In the case of Cosby, the promise was not to exclude (or suppress) Cosby’s statements in the civil case from the criminal case. If it were, perhaps a third trial would make sense; this time ensuring that Cosby’s testimony was not used against him. SCOPA dismissed that route, stating, “That is no remedy at all. Rather, it is an approach that would place Cosby nowhere near where he was before the due process violation took root.”27
The promise made by the DA, SCOPA urged, was that Cosby would not be prosecuted for sexually assaulting Constand. Period. The DA promised that he would not prosecute Cosby for his actions involving Constand. The end. Therefore, according to SCOPA:
A contrary result would be patently untenable. It would violate long-cherished principles of fundamental fairness. It would be antithetical to, and corrosive of, the integrity and functionality of the criminal justice system that we strive to maintain.28
The only remedy—the specific performance owed to Cosby for his detrimental reliance on the DA’s promise not to prosecute (in contract law speak)—is to remove the prosecution and all its results altogether.29 Make it like the trial never occurred. Throw out the conviction and the associated punishment. No other option would suffice.30
SCOPA justified this decision by arguing that if it held differently (ordering Cosby to stand trial a third time or upholding the conviction), society would lose faith in the fairness and justness of the criminal legal system. Justice Wecht wrote:
It cannot be gainsaid that society holds a strong interest in the prosecution of crimes. It is also true that no such interest, however important, ever can eclipse society’s interest in ensuring that the constitutional rights of the people are vindicated. Society’s interest in prosecution does not displace the remedy due to constitutionally aggrieved persons.31
Ultimately, SCOPA said, the prosecution of crimes in our society is important, but not at the expense of the constitutional rights afforded to every person in this country. Here, Cosby’s constitutional rights were so badly violated that the only remedy was to overturn his conviction and set him free.
Again, I hope this explanation helps you to engage with all of the publicity surrounding this case. It certainly brings up many important issues around prosecuting sexual assault and protecting the constitutional rights of criminal defendants. Much fodder for discussion, a discussion to be continued in upcoming editions.
For more on this case, here are three good resources:
Maryclaire Dale and Alanna Durkin Richer, “EXPLAINER: Why Bill Cosby’s conviction was overturned,” AP, located at: https://apnews.com/article/why-was-bill-cosby-conviction-overturned-2a65ec25c153fbd1c24b1c58a2b6e583
“Legal Expert Explains Pennsylvania Court Ruling in Bill Cosby Case,” KCAL9, located at:
“Bill Cosby freed after top court overturns sexual assault conviction,” BBC News, located at: https://www.bbc.com/news/world-us-canada-57671012
“How Courts Work,” American Bar Association, located at: https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/cases/
State v. Johnson, 141 N.W.2d 517 (Minn. 1966), located at: https://law.justia.com/cases/minnesota/supreme-court/1966/40117-1.html
I use “they” and “them” to describe individuals who have not self-identified their gender to ensure that I do not mis-gender or assign gender.
State v. Johnson, 141 N.W.2d 517 (Minn. 1966), located at: https://law.justia.com/cases/minnesota/supreme-court/1966/40117-1.html. “The Double Jeopardy Clause in the Fifth Amendment to the US Constitution prohibits anyone from being prosecuted twice for substantially the same crime,” located at: https://www.law.cornell.edu/wex/double_jeopardy
State v. Johnson, 141 N.W.2d 517 (Minn. 1966), located at: https://law.justia.com/cases/minnesota/supreme-court/1966/40117-1.html
Joe Barrett, “Why Can the Minnesota Jury Convict on Multiple Charges for One Death?,” The Wall Street Journal, located at: https://www.wsj.com/livecoverage/derek-chauvin-trial-verdict/card/IkfPnhAJwr5J9xchHuX9
Minnesota Sentencing Guidelines, located at: https://mn.gov/msgc-stat/documents/Guidelines/2020/2020StandardSentencingGuidelinesGrid.pdf
Lubaina Baloch, “Federal grand jury indicts Derek Chauvin, three others for death of George Floyd, The Jurist, located at: https://www.jurist.org/news/2021/05/federal-grand-jury-indicts-derek-chauvin-three-others-for-death-of-george-floyd/
Carrie Johnson, “Justice Department Brings Federal Criminal Charges Against Derek Chauvin, 3 Others,” NPR, located at: https://www.npr.org/sections/trial-over-killing-of-george-floyd/2021/05/07/987737695/justice-department-brings-federal-criminal-charges-against-derek-chauvin-3-other
“This means that the prosecution must convince the jury that there is no other reasonable explanation that can come from the evidence presented at trial. In other words, the jury must be virtually certain of the defendant’s guilt in order to render a guilty verdict.” Legal Information Institute, located at: ttps://www.law.cornell.edu/wex/beyond_a_reasonable_doubt
“Under the preponderance standard, the burden of proof is met when the party with the burden convinces the fact finder that there is a greater than 50% chance that the claim is true.” Legal Information Institute, located at: https://www.law.cornell.edu/wex/preponderance_of_the_evidence
Commonwealth v. Cosby, p. 59, located at: https://www.pacourts.us/Storage/media/pdfs/20210630/163038-june302021opinionwecht.pdf
Ibid. at p. 64.
Cosby used a legal mechanism called habeas corpus to challenge the criminal charges, but the trial court ruled against him. If you are curious, you can see Cosby’s filing here: https://www.montcopa.org/ArchiveCenter/ViewFile/Item/2752
Transactional immunity is an agreement, supported by the court, that protects a witness (including a defendant) from criminal prosecution if they reveal criminal activity in their testimony.
Commonwealth v. Cosby, p. 38, located at: https://www.pacourts.us/Storage/media/pdfs/20210630/163038-june302021opinionwecht.pdf
Ibid. at p. 52.
The court went on to say:
Considered together, these authorities obligate courts to hold prosecutors to their word, to enforce promises, to ensure that defendants’ decisions are made with a full understanding of the circumstances, and to prevent fraudulent inducements of waivers of one or more constitutional rights. Prosecutors can be bound by their assurances or decisions under principles of contract law or by application of the fundamental fairness considerations that inform and undergird the due process of law. The law is clear that, based upon their unique role in the criminal justice system, prosecutors generally are bound by their assurances, particularly when defendants rely to their detriment upon those guarantees. (Ibid. at 57).
Ibid. at p. 66.
Cosby did not invoke the Fifth Amendment before he incriminated himself because he was operating under the reasonable belief that D.A. Castor’s decision not to prosecute him meant that “the potential exposure to criminal punishment no longer exist[ed].” Id. at 1065. Cosby could not invoke that which he no longer possessed, given the Commonwealth’s assurances that he faced no risk of prosecution. Not only did D.A. Castor’s unconditional decision not to prosecute Cosby strip Cosby of a fundamental constitutional right, but, because he was forced to testify, Cosby provided Constand’s civil attorneys with evidence of Cosby’s past use of drugs to facilitate his sexual exploits. Undoubtedly, this information hindered Cosby’s ability to defend against the civil action, and led to a settlement for a significant amount of money. We are left with no doubt that Cosby relied to his detriment upon the district attorney’s decision not to prosecute him. (Ibid. at p. 67).
Ibid. at p. 77.
This is not completely unusual, though its most common occurrence is in relation to plea bargains, not cases like this one.
Commonwealth v. Cosby, p. 77, located at: https://www.pacourts.us/Storage/media/pdfs/20210630/163038-june302021opinionwecht.pdf
Ibid. at p. 79.
Starting with D.A. Castor’s inducement, Cosby gave up a fundamental constitutional right, was compelled to participate in a civil case after losing that right, testified against his own interests, weakened his position there and ultimately settled the case for a large sum of money, was tried twice in criminal court, was convicted, and has served several years in prison. All of this started with D.A. Castor’s compulsion of Cosby’s reliance upon a public proclamation that Cosby would not be prosecuted. (Ibid. at pp. 77-78 (internal citations removed)).
Ibid. at pp. 77-79.
Ibid. at p. 78.