Dennis Prager Show - Andy McCarthy Explains the Charges Against Derek Chauvin
Aired: 2021-04-07
Duration: 06:35


=== Second Degree Murder Theory (06:31) ===

[00:00:01]  First of all, I don't think people understand, and I'm probably one of them.
[00:00:05]  What exactly is he prosecuted?
[00:00:09]  Is it third degree, second degree, first degree?
[00:00:12]  What is the exact charge?
[00:00:15]  There are three charges, Dennis.
[00:00:17]  There are two murder charges and one manslaughter.
[00:00:21]  The murder charges are both unintentional homicide.
[00:00:25]  There is murder in the second degree, and the theory behind that is that A person is unintentionally killed in the course of somebody committing another crime.
[00:00:39]  So the theory that they're pursuing is that at a certain point, because Chauvin used excessive force, the restraint became a criminal assault, and it caused Floyd's death.
[00:00:55]  So they have to prove that the criminal assault was intentional.
[00:00:59]  Not that they intended to cause death.
[00:01:01]  And that second-degree murder, you can get 40 years for that.
[00:01:05]  The second charge is third-degree murder, and the theory of that is depraved indifference to human life.
[00:01:13]  That is, that the officer used tactics which exhibited such an amoral, depraved...
[00:01:22]  The best example I remember from law school is the person who shoots a Shoots a gun into a crowd where it's indiscriminate.
[00:01:32]  You're not trying to kill any particular person, but you're completely heedless of what kind of danger you put people in.
[00:01:39]  So that's the third-degree charge, and you can get up to 25 years for that.
[00:01:44]  And then finally, there's manslaughter, which is negligent homicide, which is that you're not intending to cause the death of the person, but you fail in some duty of care.
[00:01:58]  In a way that's so grossly negligent that you create a dangerous situation and death is caused.
[00:02:05]  So those are the three charges.
[00:02:06]  And what is the punishment for that?
[00:02:10]  I believe it's up to 10 years, but it may be less than that.
[00:02:16]  So it shows how little I know about the way courts work.
[00:02:21]  What is this notion of throwing three different charges?
[00:02:26]  What is it sort of like?
[00:02:28]  I get three chances with my darts to hit a bullseye?
[00:02:32]  Well, as a prosecutor, you're allowed to charge any offense that a rational jury could reasonably conclude you proved.
[00:02:45]  And it would be problematic for the prosecutors if they were charging counts that were internally inconsistent.
[00:02:53]  These are really counts that are internally consistent, but they hinge on questions of causation and what was going on in Chauvin's mind.
[00:03:05]  So there's not a lot of – I shouldn't say there's not a lot of dispute about what physically happened because, in fact, there is some dispute about whether Chauvin physically sat on Floyd's neck.
[00:03:21]  Or, as his defense is showing, and I think they're doing a very good job with this with the expert witnesses, that he really put pressure between the shoulder blades and touched on the neck, but not in a way that would have inhibited Floyd's breathing, which is a very important issue in the case.
[00:03:40]  But you're allowed to charge things that are consistent.
[00:03:48]  Andrew McCarthy, will the defense claim that if Derek Chauvin had done nothing, the amount of fentanyl in George Floyd's bloodstream would have killed him anyway?
[00:04:05]  Yes.
[00:04:06]  And I think, Dennis, you've hit on something that turns out to be very important because the prosecutor in the opening, this is not a place you want to be as the prosecutor.
[00:04:14]  He basically said that, yes, it's true that Floyd may have had so much fentanyl in his system that it would have killed a normal person, but because he was a drug abuser for so long, he had built up a tolerance to it.
[00:04:26]  That's really not, I mean, that may be true, but it's not where you want to be.
[00:04:32]  Oh, so that, so...
[00:04:34]  How does the jury decide?
[00:04:37]  They're going to hear a lot of experts.
[00:04:39]  I think in the coming days they're going to get a lot of medical expert testimony on the issue of causation.
[00:04:47]  I'm putting you on the spot, and you have perfect right to say you don't know or you'll decide later.
[00:04:55]  In your heart, right now, do you think that Derek Chauvin killed him?
[00:05:02]  Not in the sense of murder.
[00:05:04]  I think there's a pretty good manslaughter case.
[00:05:08]  I think there's a very weak depraved indifference to human life case.
[00:05:13]  And the question of whether the force was so excessive that it should be criminal assault for purposes of murder in the second degree, I think that's what the case is really going to come down to.
[00:05:28]  And that's a tough call right now.
[00:05:31]  I'm sorry, what's the tough call?
[00:05:33]  Whether it's second-degree murder or manslaughter?
[00:05:36]  Whether it's excessive force that rises to the level of...
[00:05:41]  Of second-degree murder.
[00:05:43]  Of a criminal assault.
[00:05:44]  If they can prove this is a criminal assault dentist, then they're most of the way home to proving second-degree murder.
[00:05:51]  Oddly, I think the proof of second-degree murder now is stronger than third-degree murder.
[00:05:55]  I actually think third-degree murder is frivolous almost at this point.
[00:06:01]  You mean the depraved indifference charge?
[00:06:04]  Yeah, I think there's enough evidence that Chauvin did not do the, you know, worst case scenario that's been described in the political narrative.
[00:06:13]  It wasn't choking.
[00:06:15]  You know, the way he applied this neck hold, it was not something that was against police procedure.

=== Gotta Find Out (00:17) ===

[00:06:20]  All right, one more question.
[00:06:21]  I don't see how they proved that.
[00:06:22]  Can I keep calling on you?
[00:06:24]  Yeah, of course.
[00:06:26]  You can call me anytime, my friend.
[00:06:28]  Holy crow.
[00:06:32]  That's great.
[00:06:33]  We gotta find out if he smokes cigars.