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It Wasn’t Our Dog…
When plaintiffs file a wrongful death lawsuit, they know that the defendant will defend the case just like it was a dog bite case: it wasn’t our dog, it didn’t bite you, if it did bite you, you deserved to get bit, and what are you hollering for, because the dog bite didn’t cause your injury. Now, substitute any kind of tortious or negligent act for “dog bite” and you have the defense bar’s approach to wrongful death cases.
I handled a nursing home wrongful death case in 2014 that took nine years to get to trial. Every conceivable way a case can be delayed, this case was. The negligence in the case was horrible. The 88-year-old victim, whose daughter was a nurse, and had been the Director of Nursing at that institution, testified that her mother was terribly neglected. The medical records demonstrated that she went 26 days without a single nursing note during a period of time where she lost nearly 20 pounds of body weight.
At trial our case was simple: neglect caused her death. The judge told me my closing argument was one of the best he’d heard.
We lost.
In part, we lost because the defense had a slick expert who was an exceptionally gifted liar. But mostly we lost because of causation. While we made the case perfectly that the abuse heaped on the woman by the nursing home personnel caused her to stop eating and wish for death, at the end of the day, she didn’t eat. While we saw the causation as clear, as did our expert physician and nurse, the jury did not. The defense had a simple case too: she was old, she was going to die anyway.
In a civil case, all you have to do is show that your theory is more likely. You don’t have to prove it beyond a reasonable doubt (although many trial lawyers would tell you to win a malpractice case you have to have much more than a “more likely” and more like a “no other way it could have happened” standard). Malpractice cases are rarely defended on the standard of care. If you’re a nursing home defense lawyer, you can’t really argue that it’s okay to let a patient sit in a nursing home and not get seen for 26 days. So instead, you argue the ace-in-the-hole of every defense lawyer: causation.
Causation requires both factual causation (that the negligence caused the injury in fact) as well as proximate causation (that the injury that occurred was foreseeable as a natural and probable result of the negligence). Law school students have struggled with these concepts for the last 100 years, and most lawyers can’t explain these concepts in under an hour. But the bottom line is as the plaintiff you have to prove that the act of the defendant caused the injury the plaintiff is complaining about.
In criminal law, the burden is even steeper. It is not enough to show that the murderer had access to the house, hated the victim, owned a gun, and had said he would kill the victim. The prosecutor must show that in addition to that, the evidence puts him at the scene, at the time of the killing, and that some physical evidence ties him to the crime. Gunshot residue on the clothing. Hair and fiber. And the best of all: DNA. Evidence is key. There are no shortcuts in criminal law.
A friend of mine who is a former prosecutor has said that the worst witness he ever put up in a murder trial was a pathologist who worked for the medical examiner. English was not his native language. When asked on the stand what caused the death of a victim suffering a gunshot wound to the head, he said “Ah big ah hole, head, belly belly daid.” As if there could be quantitative measures of the degree of being dead. I suppose a person shot through the heart would just be “belly daid.”
It has now come out that Saint George, or as he was known at the time, George Floyd, had a fatal level of fentanyl in his system. The lawyers for the accused police officers are attacking the murder charges in the case by claiming, much like my nursing home patient, that he was drugged and was going to die anyway. And if the fentanyl didn’t kill him, then surely the fact that he was both an addict and a victim of the coronavirus surely would have.
In addition to that, in a May 26, 2020 memorandum the medical examiner concluded, “The autopsy revealed no physical evidence suggesting that Mr. Floyd died of asphyxiation.”
For those of you without degrees in pharmacology, Fentanyl is a powerful synthetic opioid that is similar to morphine but is 50 to 100 times more potent. That means that in toxic amounts it causes respiratory depression and arrest, unconsciousness, coma, and death. On the positive side, you die with a happy buzz.
Derek Chauvin was charged with Second-Degree murder (which is murder without intent) under the felony murder rule because Chauvin was committing a felony assault on Floyd. That charge states that “on or about May 25, 2020, in Hennepin County, Minnesota, Derek Michael Chauvin, caused the death of a human being, George Floyd, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting, namely assault in the third degree.” He was also charged with Third Degree murder. That charge states that “on or about May 25, 2020, in Hennepin County, Derek Michael Chauvin caused the death of another, George Floyd, by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.”
If you look carefully at the charges, however, here’s what you notice. It is alleged that Derek Michael Chauvin, caused the death of … George Floyd. In other words, the state has to prove beyond a reasonable doubt that the acts of Derek Chauvin, and no other factors, directly caused the death of George Floyd. Unlike civil law, where the law sometimes states causation in terms of “caused or directly contributed to cause” (meaning that the acts of the defendant combined with other factors) here the state has to prove beyond a reasonable doubt that the police officer’s actions were the sole cause of the death.
In other words, Chauvin and the other police officers are going to argue it wasn’t their dog, and it didn’t cause the injury. You want someone for George Floyd’s murder, find the creep that sold him the clinical derivative of China White heroin. If the jury is honest and abides by their oath, I fail to see how a jury could convict any of these officers. Was their conduct bad? Yes. Did it cause death? Maybe. But “maybe” won’t cut it in a criminal trial.
The real question is, will there be riots when these officers go home free men?
Published in Policing
He was in a car. If he’s showing signs of inebriation or “under the influence”, I believe they’re liable if they let him go and he winds up injuring/killing himself or others.
And I am saying the lines are where they are as the embodiment of more than two hundred (and many more in common law) years of experience that has been codified as the laws and criminal procedures. Many legal decisions went into where those lines are. Many discussions in legislatures went into where those lines are.
I also understand you think passing counterfeit money is no big deal. Again, that is not what the people of the United States have decided through their elected representation. One person did not decide one day in an arbitrary way that counterfeiting should be a felony. One person did not arbitrarily decide that felons who could be a flight risk should be held over until at least a bail hearing to determine how to mitigate the risk of flight. These decisions are the embodiment of hundreds or thousands of instances of trying various things, like giving a fellow an invitation (citation) to come to court.
Let’s go to the scientific method. First thing is to identify and state the problem. Then one identifies alternative solutions. For instance, your alternative is, “Just cite the guy. If you need a warrant, you can go to a magistrate and get one later.” Another alternative might be, “Promote all LEOs to magistrate so they can issue warrants when they are needed on the streets.” Both of these have problems with them. There might be other alternatives, too. Then comes selecting the best alternative or hybrid alternative. Of course, first we have to state the problem to know what our solutions are addressing. Let me try first, and then you can try, and maybe we can come to an agreement:
“Some people make bad decisions and do not learn from them. Some of these people, like George Floyd, are on the path to win their Darwin Award, and there really isn’t much we can do about that.” I think the evidence of this is abundant all around us. But if you would like, I’d be happy to link to headlines.
So how would you state the problem? What preliminary evidence do you have for it?
I’m sorry. I always try to think the best of people. The alternatives were much worse.
I think the “confrontation” started when the police tried to just talk to him as he was sitting in his car, and he was poorly coherent and non-compliant with positioning his hands.
There’s a saying about a horse and how you rode it here that I’ll only refer to but not complete.
I see we are at an impasse. It’s interesting that someone in such bad shape required several minutes to be “subdued” in the presence of four officers.
It would have been easier if Floyd had just dropped dead in the street and obviously “killed himself.”
Hey, remember the days of PCP?
It was marketed in parts of D.C. under the brand name of “Rocket Fuel.” I’m thinking a narcotic of the nature of fentanyl is somewhat different, but I’m not up for a comparison test.
“Marketed?” Are we talking pre-1965? Or illicit marketing?
There would still have been riots. See #35
Illicit–as in labels on baggies. A true “underground” economy.
I have read elsewhere that Floyd was exhibiting signs of a condition known as agitated delirium (or some similar name) in which the suffer is irrational, unpredictable, and sometimes capable of astounding feats of strength (i,e,. potentially dangerous to themselves or others). That observation is why they called the ambulance. This whole thing would probably have been very different had the ambulance arrived while he was still alive.
So, charge the ambulance drivers with negligent homicide for not arriving in time. Problem solved!