Tommy Wiita & Callan Gray
Updated: June 02, 2021 10:41 PM
Created: June 02, 2021 01:46 PM
On Wednesday, the defense attorney for ex-Minneapolis police officer Derek Chauvin asked for a downward sentencing departure for his client.
Documents filed in Hennepin County court propose probation and prison time equal to the time Chauvin has already served instead of the sentencing he is facing.
Chauvin was charged and convicted of second- and third-degree murder charges, as well as a second-degree manslaughter charge. He is scheduled to be sentenced on June 25.
"...the court must look to the facts. They all point to the single most important fact: Mr. Chauvin did not intend to cause George Floyd's death," the defense claimed in the filings submitted Wednesday.
On the flip side, prosecutors have already asked that the former officer serve more time. On Wednesday, prosecutors asked for Chauvin's sentencing length to be 30 years.
“Both sides have taken a position asking for something they probably won’t get,” said Mark Osler, Professor and Robert and Marion Short Distinguished Chair in Law at the University of St. Thomas Law School. “I can almost guarantee Derek Chauvin is not going to get probation and that’s what the defense is asking for. On the other hand, will he get 30 years as the government wants? That’s unlikely as well.”
He said he was a little bit surprised by Nelson’s motion but believes it’s strategic.
“There is a tactic going on as well, which is if you ask for a lot, maybe you'll get a little,” Osler said. “I think that it's fair to think that the defense, as much as anything, wants the sentence not to be enhanced over the guideline range.”
In the defense motion, Nelson cited Chauvin’s age, lack of prior convictions, cooperation and attitude in court and support from the community as factors for Judge Peter Cahill to consider.
“I didn’t find any of them particularly compelling to be honest with you,” Osler said. “Derek Chauvin does have some things hanging over him regarding his taxes, regarding registering to vote in another state, which if I were a probation officer would give me pause ... So I think that the other side may have some arrows to shoot back on those points.”
Due to all three crimes of conviction coming from the same "behavioral incident," the defense claims that they merge and the court "must pronounce a sentence only on the highest-level offense."
The second-degree murder charge would be the highest-level offense in this case, which would result in a sentencing anywhere from 128 months (just over 10.5 years) to 180 months (15 years), according to Wednesday's filings.
"Mr. Chauvin asks the Court to look beyond its findings, to his background, his lack of criminal history, his amenability to probation, to the unusual facts of this case, and to his being a product of a 'broken' system," the proposed motion reads.
“A lot of people in America right now think that broken system was displayed in Derek Chauvin and what he did, so calling attention to that may end up going backwards for the defense,” Osler said. “I’m fascinated to see how that plays out because in the end that's what so much of our attention nationally is going towards, how did we get to this place where things are so wrong? He may be inviting a discussion that might not be great for his client but is definitely good for our country.”
Cahill will decide on the motion in the coming days.
The state’s motion recommending a 30-year sentence comes just three weeks after Cahill found four facts supporting a higher sentence.
“I don’t think [Cahill’s] going to change his mind on having found the factors that allow for an upward departure,” Osler said. “But you have to remember that all the finding of those facts does is open the door to an upward departure, it just gives Judge Cahill the ability to do that if he chooses to do it.”
According to Osler, if Chauvin is sentenced to 30 years in prison, it's unlikely he would serve all of that time behind bars.
“In this state, we have a system where two-thirds of the time is in prison and one-third of the time is supervised release, so if he got 30 years it would mean 20 years in prison, 10 years on release provided there's good behavior,” Osler said.
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