Attorneys debate 'aggravating factors' in George Floyd murder

Former Minneapolis police officer Derek Chauvin should face a longer prison sentence for George Floyd's murder because he inflicted "particular cruelty" upon Floyd, prosecutors argued Friday in a new court filing.

Chauvin's attorney, Eric Nelson, also filed a memorandum disputing the state's intention to seek "aggravating factors" that can be used to argue for a stiffer prison term than state sentencing guidelines recommend when Chauvin is sentenced June 25.

"Defendant's actions inflicted gratuitous pain, and caused psychological distress to Mr. Floyd and to the bystanders," wrote the Minnesota Attorney General's Office, which is leading the prosecution. "Moreover, despite Mr. Floyd's obvious signs of medical distress, and despite Defendant's training, Defendant made no attempt to perform CPR or give Mr. Floyd medical attention, and discouraged others on the scene from providing Mr. Floyd with medical attention."

In his 10-page response, Nelson disputed the legal grounds for all of the factors outlined by prosecutors.

"Because the State has failed to meet its burden of proving the existence of the alleged aggravating factors beyond a reasonable doubt, the Court may not consider them in making its sentencing determination," Nelson wrote.

Prosecutors wrote that while only one aggravating factor is needed to support a longer sentence, there were five such factors in Chauvin's case:

• Floyd was "particularly vulnerable" because his hands were handcuffed behind his back when three officers pinned him stomach-down in the street for allegedly using a fake $20 bill at Cup Foods.

• Floyd was treated with "particular cruelty."

• Chauvin abused his position of authority.

• Chauvin committed the act as part of a group.

• Chauvin's actions occurred in front of at least six children, four of whom testified at his trial.

The court filings come more than a week after jurors convicted Chauvin on all of the counts against him in Floyd's May 25 killing: second-degree unintentional murder, third-degree murder and second-degree manslaughter.

Hennepin County District Judge Peter Cahill will review the memorandums and decide whether aggravating factors exist. Chauvin decided at trial that Cahill, not jurors, would review the matter.

Second-degree unintentional murder is punishable by up to 40 years in prison. Third-degree murder is punishable by up to 25 years in prison. However, Minnesota sentencing guidelines call for identical presumptive prison terms for both counts, starting at 12½ years for someone with no criminal history. Second-degree manslaughter is punishable by up to 10 years in prison and/or a fine of $20,000. The count carries a presumptive sentence of four years for someone with no criminal history.

Chauvin will be sentenced on the highest charge. Ted Sampsell-Jones, a professor of law at Mitchell Hamline School of Law, previously said that if Cahill found aggravating factors and applied them at sentencing, Chauvin could receive a maximum of 30 years in prison. Without those factors, he said, Chauvin could receive 15 years maximum.

Prosecutors argued that Floyd was placed in a particularly vulnerable position in the street that threatened his ability to breathe, which Chauvin should have known from his training.

Chauvin knelt on Floyd's neck for nine minutes and 29 seconds despite Floyd saying 27 times that he couldn't breathe, and he became unresponsive with no pulse, prosecutors argued.

" … Defendant responded dismissively to Mr. Floyd's pleas," prosecutors wrote. "He nonchalantly said 'uh huh' several times … And he said: 'You're doing a lot of talking, a lot of yelling. It takes a heck of a lot of oxygen to say things.' "

Floyd recognized Chauvin's authority as an officer and his colleagues' authority, and used "respectful language" to address them, prosecutors wrote in arguing that Chauvin abused his position.

Nelson countered the state's claim that Floyd was vulnerable by pointing out that Floyd was "well over six feet tall, muscular, and weighed in excess of two hundred pounds." He wrote that Floyd "began to actively resist" arrest as two other officers attempted to put him in a squad car, and that even after Chauvin joined the effort, Floyd "still managed to prevent himself from being subdued until officers were finally able to restrain him on the ground, where he continued to struggle."

Nelson disputed that Chauvin acted with cruelty because bystanders witnessed the crime. None of the witnesses were Floyd's friends or relatives, as is often the case when that aggravating factor is found, he wrote.

"Importantly, none of the witnesses' observation of the incident was involuntary … They were all free — and in fact, encouraged by Officer Thao — to leave at any time they wished," Nelson wrote.

As for Chauvin failing to render aid, Nelson said an ambulance had been called before Chauvin arrived. He also argued that the abuse of authority by a police officer is not a recognized "aggravating factor" in sentencing.

The state can't prove that Chauvin committed the offense as part of a group because the other officers haven't been convicted of crimes, Nelson wrote. Finally, Nelson said the presence of children is usually considered when they are present in a home or at the beginning of a crime and are unable to leave, while the children in Chauvin's case were bystanders who were not endangered.

Chauvin's three former colleagues who were at the scene — J. Alexander Kueng, Thomas Lane and Tou Thao — are scheduled to be tried in one trial starting Aug. 23 on charges of aiding and abetting second-degree murder and manslaughter. All three are out on bond.

chao.xiong@startribune.com

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raolson@startribune.com

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