Big hints lie in the official complaint against Derek Chauvin -- and surprising details are left out: ex-prosecutor

In a column for CNN, former federal prosecutor Elie Honig reviewed the criminal complaint filed against ex-Minneapolis police officer Derek Chauvin and said it gives clues as to the direction prosecutors are likely to follow to convict the alleged killer of George Floyd -- but it also leaves out  key elements of the case that should be brought before a jury.

As Honig wrote, the case against Chauvin is strong but may not go far enough.

Explaining, "A complaint is, essentially, a preliminary summary of evidence that prosecutors use to lodge a criminal charge and make an arrest. It is a crucial legal document but it is not final or definitive. The complaint does not necessarily set forth everything that prosecutors know now, or will learn as the investigation progresses," he went on to add, "... the lead charge itself -- third-degree murder -- is light, given the facts. Third-degree murder carries a maximum penalty of 25 years, and requires proof that the defendant committed an act 'eminently dangerous to others and evincing a depraved mind, without regard for human life.' In other words, prosecutors must show that Chauvin acted recklessly and dangerously, without necessarily intending to kill Floyd."

According to the former prosecutor, it is entirely possible that the charges could be upgraded in severity.

"Prosecutors could have charged (and still could eventually charge) Chauvin with more serious second-degree murder, which carries a potential 40-year sentence and requires proof that the defendant intentionally killed the victim, without premeditation. The evidence seems sufficient to support such a charge -- particularly given the astonishing length of time that Chauvin kept his knee on Floyd's neck," he explained. "Overall, the complaint lays out a devastating case against Chauvin -- though it adds little to the cellphone video of Chauvin kneeling on Floyd's neck. The most compelling part of the complaint is the timeline. It notes that Chauvin kept his knee on Floyd's neck for 8 minutes and 46 seconds. Even more damning, the complaint notes that Chauvin kept his knee on Floyd's neck for three full minutes after Floyd stopped moving and nearly two minutes after he apparently "ceas[ed] to breathe or speak." Another officer even checked Floyd's wrist for a pulse and said he couldn't find one -- and yet Chauvin still did not immediately move. Those facts alone could establish the intentional conduct necessary for a second-degree murder charge."

That brought Honig to one curious omission.

"The complaint notes that, as Chauvin pressed his knee into Floyd's neck, Floyd stated 'I can't breathe,' 'mama,' and 'please.' Yet the prosecutors inexplicably omit some of the most important lines Floyd uttered in the video: 'Don't kill me,' and 'I'm about to die,'" he explained. "Floyd's statements are particularly crucial because they unequivocally put Chauvin on notice that Floyd was in mortal danger -- yet Chauvin continued kneeling on his neck. Why would prosecutors leave out the clearest and most legally pivotal statements made by Floyd?"

Honig went on to note, "The complaint states that the autopsy 'revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation.'This notation seems baffling at first glance, given the crystal-clear video of Chauvin kneeling on Floyd's neck. But the lack of 'physical findings' by no means rules out the possibility that the victim died of traumatic asphyxia or strangulation. In other words, a person can die of asphyxiation with or without 'physical findings.' The complaint is based on 'preliminary findings' from the autopsy, so we await the full report, which should follow soon."

"The complaint notes that 'the combined effects of Mr. Floyd being restrained by the police, his underlying health conditions and any potential intoxicants in his system likely contributed to his death,'" he explained. "'Restrained' is a charitable way to describe what Chauvin did to Floyd on video; most would call that something closer to 'crushed' or at least 'pinned down.'"

"In my 14 years as a prosecutor (or my 45 years of life), I've never heard of a 'potential intoxicant,'" he pointed out. "Did Floyd have intoxicants in his system or not? A basic toxicology test should answer that question conclusively, and there is no excuse for prosecutors to not know the answer, or to state it ambiguously, four days after Floyd's death. In any event, even if intoxicants and health conditions somehow contributed to Floyd's death, it does not matter legally. So long as Chauvin's actions were even a contributory cause of Floyd's death, then Chauvin is legally responsible. If Floyd would be alive if not for Chauvin's actions, then Chauvin can be convicted."

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