Andrew McCarthy surprises me a little with this analysis?

After appearing to be a cheerleader for the prosecution, former prosecutor McCarthy suggests that the state did not prove murder. But feels manslaughter could be justified.

When someone suffers a nonfatal injury because of another person’s carelessness, we grasp pretty easily that this is what civil lawsuits are for. When someone dies because of another person’s carelessness, however, our angry reaction, wholly natural, is that the other person must be punished because mere money damages can in no sense compensate for the life that has been lost.

But when logic enters into the equation, the logic that undergirds the criminal-justice system, we grudgingly understand the apples-to-oranges problem. We convict and punish people, taking their liberty away, as a penalty for their malevolent intention to cause harm. We do it to make them mend their ways. We’re not trying to teach them to be more careful next time. We are trying to overcome their will to prey on society. We are discouraging others from similarly acting on their evil inclinations.

Second Degree Murder

This is also a charge of unintentional homicide. Unlike manslaughter, though, it does have a traditional criminal-intent — or mens rea — element. The theory is felony murder: a homicide that the perpetrator does not intend but commits during the course of carrying out a different offense. In this instance, that offense is criminal assault (third-degree assault under Minnesota law

This requires prosecutors to establish that Chauvin intentionally inflicted bodily harm on Floyd. That is, the state must prove mens rea not for murder but for assault. To convict, the jury must be unanimously convinced that Chauvin’s specific purpose was to inflict physical pain, that bodily harm to Floyd was a result that Chauvin wanted to bring about.

I do not believe that the prosecutors have met this burden beyond a reasonable doubt.

If it were not for the fraught atmosphere, and the heavy political and social pressure to convict, I do not believe that a jury would render a guilty verdict on second-degree murder. Indeed, I don’t think prosecutors would have charged it.

Third Degree Murder 

To my mind, as the evidence has played out, the easiest charge to dispense with is the third-degree murder count — the one the state fought to keep in the case even though Judge Peter Cahill saw no basis for it. It is homicide caused by reckless acts taken with a depraved indifference to human life. The classic example is the sociopath who indiscriminately shoots a gun into a crowd — not intending to kill or harm any particular person, but heedlessly creating a patent risk of death or severe injury to everyone in the vicinity of the act.

This is not that kind of case. The police acted forcibly in response to Floyd alone. They did not cause danger to anyone else. They did not even cause danger to Floyd until he resisted arrest. They called for an ambulance to get him medical attention rather than trying to drag him to detention in the station house or a jail. They used more force and administered less care than the circumstances called for, but Chauvin and his partners did not exhibit depraved indifference to human life as that term is understood in the law.

Second Degree Manslaughter

Judge Cahill will advise the jury that there is a five-part test for whether an act meets this standard of recklessness. The state must prove beyond a reasonable doubt that (1) Chauvin’s actions created a risk; (2) the risk was substantial; (3) there was no adequate reason for taking the risk; (4) Chauvin was aware of the risk; and (5) he disregarded the risk. But the judge will admonish the jurors that the state need not prove that Chauvin intended to cause Floyd harm.

This is where I tend to run into some confusion or even a mild disagreement with some legal analysis. According to another author from National Review, they make an argument against charging Kim Potter (the police officer who shot Daunte Wright) based on the fact that Minnesota law does require an understanding or some sort of intent:

(1) by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.

Burke writes that Minnesota “has no applicable statute for criminally negligent (non-conscious) homicide,” meaning the state “has made a policy decision to leave most negligent homicides free from criminal punishment unless coupled with consciousness of the risk of grave injury or death.”

So perhaps it is just a matter of semantics, but the statute does suggest that the state must prove that there was not just a risk (in general) but a risk that the actions could cause death or great bodily harm.  I don't see how you demand that you can prove one without also proving the other. If Chauvin was truly aware that his restraint was likely to cause harm or even death, then that basically is your conscious decision to cause that harm or death. 

Or was it the non-action (in this case) that we are now faulting him for. Not that the restraint was going to cause death or great bodily harm, but that the fact he didn't roll him over or didn't perform CPR was going to cause death or great bodily harm. Either way, this sounds more like a case of "negligence" than a "conscious decision" to do something that he understood could cause death or great bodily harm. Again, this was the lowest level of physical force as defined by police. Any less force would have been no force.

Back to McCarthy:

There is a good argument that prosecutors have exaggerated the danger of the prone position, the amount of weight the police were applying, and the manner in which they were applying it. Chauvin never choked Floyd. The claims that he was, in effect, strangling Floyd by the neck are overblown. Still, within five minutes, Floyd stopped resisting, was obviously laboring to breathe, and lost his pulse. It was utterly irresponsible of the police, at that point, to fail to place him on his side and to render him medical assistance.

This is why I believe it is highly likely that Chauvin will be convicted of manslaughter, and that verdict would be well justified.

Now, I don't mean to belabor this point. But it still sounds like McCarthy is using a different basis of underlying law to reach this conclusion. As explained in that article regarding Officer Potter, Minnesota does not have a manslaughter law that encompasses "negligence" like many other states do. So I am not sure if McCarthy is using a more generic Manslaughter argument to reach this conclusion, or if he is claiming that the argument (they should have known better) fits under the definition of consciously performing an action that they knew could or would cause death or great bodily harm?  

More to the point, McCarthy doesn't even address the second element of the prosecution's burden. Whether or not George Floyd even died because of the officers? It feels like McCarthy is just assuming that to be the case. Andrew Branca makes no assumptions and suggests that this case probably shouldn't even get to questions of intent or negligence based on the fact that the state may have not proven cause of death.

Either way, I don't disagree that the jury is likely to find Chauvin guilty of Manslaughter. Based on the political nature of this case and the violence already surrounding this, who knows what a jury might do. 

But I would personally take issue with the concept that the State has even proved a cause of death beyond reasonable doubt, much less that what happened isn't better described as negligence than the murky concept of conscious risk.