The Case Before Us, Part 7: Prior Discipline

Every defendant is presumed innocent. But, contrary to TV law and common parlance, no defendant needs to be proven guilty by evidence that is beyond any possibility of doubt. Nor does the proof have to be proof to a mathematical certainty, eliminating any and all doubt. Proof in a criminal trial need only be beyond a “reasonable doubt.”

The instruction has been repeated thousands of times.

“It does not require that the elements be proved beyond all possibility of doubt. Proof beyond a reasonable doubt is that amount of proof that ordinary men and women would act upon in their most important decisions.” — see State v. Noor.

But once that level of proof is shown and if a jury enters a unanimous verdict of guilty on one or more counts of a criminal complaint, there is still more potential work for the jury to carry out.

That work is to assist in determining the possibility of a sentence that may exceed one normally contemplated by the Minnesota Sentencing Guidelines.

Under Minnesota law and other important decisions by the United States Supreme Court, including Blakeley v. Washington, 542 U.S. 296 (2004), it is the duty of the trial jurors to determine if the State has also proven potential “aggravating factors” supporting imposition of a more severe (longer) sentence upon a convicted person.

These so-called “upward departure motions” seek to enhance or increase the amount of time served because of the seriousness or aggravated nature of the conduct than would be generally contemplated by the garden-variety offense.

In the case of Derek Chauvin, the State has noticed several potential bases to seek an upward departure depending upon the outcome at trial. So far, the State has asserted five (5) potential aggravating factors for jurors to consider at trial.

But, while the aggravating factors seem at first to be comprehensive, including factors from alleged “particular cruelty” to the alleged conduct occurring in the presence of minors, one very interesting potential aggravating factor is now absent in a prosecution against former Minneapolis officers — two of whom are veterans.

Minnesota sentencing guidelines permit an upward departure in sentencing in the event the jury finds that the instant offender “had been involved in other conduct similar to the current offense as evidenced by the findings of civil or administrative law proceedings or the imposition of professional sanctions.”

As to the Defendant Derek Chauvin, the public has become aware of multiple other allegations of excessive force while on duty. Among the four (4) officers charged, the State has indicated it is aware of potentially 18 incidents proffered under Minn. R. of Evidence 404(b) as prior acts committed by one or more defendants. It is up to the Judge to decide if any of those “prior acts” may be offered to prove guilt at trial.

However, if any defendant is convicted, jurors might also be entitled to consider these prior and similar incidents if they were “evidenced by the findings of civil or administrative law proceedings.” In other words, other incidents of excessive force that might have been “sustained” by the process of Minneapolis Police Internal Affairs discipline.

Such findings could be “aggravating factors” affecting sentencing — presuming the State of Minnesota has given proper notice to the Defendants.

But, it is unlikely any such actual findings exist now that a criminal trial is in the offing, simply because MPD routinely refuses to discipline officers with repeated complaints of misconduct, including those for excessive force.

Of 18 complaints against Derek Chauvin, only two of the 18 complaints were “closed with discipline,” according to an MPD internal affairs public summary. In both cases, the “discipline issued” column indicated that a letter of reprimand had been issued in response.” And most likely, these were complaints for minor violations — and not related to excessive force.

In this official custom of failing to mete out final discipline to MPD officers who are accused of excessive force, we see the real impact such an administrative policy can have on the prospect of serious sentencing — even if a criminal charge is proved against an officer beyond a reasonable doubt.

By having an unspoken policy or practice of laxity in discipline, any police department creates repercussions far beyond the squad car which can extend all the way into the courtroom. For in the very rare and unlikely event that an officer does find himself the subject of a Minnesota criminal complaint, his prior misconduct may never reach the sentencing phase of his own trial — even if the verdict is guilty.

-Albert Turner Goins