By Aare Afe Babalola, SAN,
Last week, I discussed the incidence of the George Floyd killing and implications of the criminal charges levied against Chauvin and the other three police officers who were complicit in his murder.
I equally discussed the Nigerian perspective to the criminal charges levied against Chauvin and the three accomplices who would, rightly, have been charged for the offences of conspiracy to commit murder and murder.
This week, I will discuss further dissimilarities between the Nigerian and US laws on the offence of murder, with specific reference to evidential requirements to establish the commission of the murder against an accused person.
Proof of murder in Nigeria
Generally, the elements of crime in Nigeria are premised on two factors: the commission of the crime (actus reus) and a criminal intention to commit the crime (mens rea). Therefore, the existence of these two elements are germane in establishing a crime in Nigeria and more-often-than-not, the absence of one of these elements is capable of absolving an accused person either totally or a reduction of the charge for a lesser charge.
For instance, if a person is charged for the commission of, say, robbery, the failure of the prosecution to establish that the accused person committed the offence (actus reus) is capable of completely absolving the accused from criminal liability.
On the other hand, in certain offences, proof of the intention of an accused person to commit the crime is an important factor in determining whether the accused will be convicted of a principal offence or a lesser offence. Homicide is one of the crimes wherein establishing the intention of an accused person is germane to a conviction of either murder or manslaughter.
Murder or manslaughter
In proper perspective, if, for instance, Mr ABC sets out from his house in his car on his way to work on a Monday morning and suddenly, a young boy crosses the road and gets hit by Mr ABC’s car, it will be difficult for the prosecution to establish that Mr ABC intended to kill the young boy if the boy gets killed by Mr ABC’s car.
In this instance, although there is the actual killing of the boy (actus reus), there is, however, the absence of an intention (mens rea) on the part of Mr ABC to kill the boy with his car.
The case is, however, different if Mr ABC, in an attempt to escape being caught in the offence of armed robbery fires a weapon at a person who seeks to restrain him. In this scenario, Mr. ABC will not only be guilty of the offence of armed robbery but will equally be guilty for murder as clearly, there is an intention on the part of Mr ABC to maul down any resistance to his escape from the scene of the robbery.
Section 316 of the Criminal Code Act, Cap. C39, LFN 2004 provides for what constitutes the offence of murder in Nigeria. It generally entails where the offender intends to cause the death of the person killed or intends to do to the person killed or to some other person some grievous harm, or if death is caused by means of an act done in the prosecution of an unlawful purpose which is likely to endanger human life, or if the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without a warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence; or if death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid; or if death is caused by wilfully stopping the breath of any person for either of such purposes. Section 319 mandatorily prescribes death sentence for any person convicted for the offence of murder in Nigeria.
In Nigeria, the prosecution must establish three things to prove the offence of murder against an accused person. First, that the deceased died; second, that the death was caused by the accused; and third, that the accused intended to either kill the victim or grievously harm him. These conditions must be conjunctively established, i.e. where the prosecution fails to establish one of these conditions, the charge of murder will fail.
Proof of murder in the US
The 2019 Minnesota Statutes, which is the applicable law in the George Floyd killing prescribes what amounts to unintentional second-degree murder which former police officer Chauvin was charged for. Subdivision 2 of Section 609.195 of the 2019 Minnesota Statutes generally provides for what constitutes Unintentional Murder as:
(i) causing the death of a human being without intent to effect the death of any person, while committing or attempting to commit a felony offence;
(ii) causing the death of a human being without intent to effect the death of any person, while intentionally inflicting or attempting to inflict bodily harm upon the victim.
A conviction for the offence of unintentional manslaughter carries a maximum sentence of 40 years imprisonment. To establish first-degree murder under the Minnesota Law, the prosecution has to prove premeditation and intent on the part of the accused person. Even then, the accused would be sentenced to life imprisonment.
For second-degree murder, all the prosecution has to prove is that the killing was unintentional in the course of committing a felony. According to Richard Frase, a criminal law professor at the University of Minnesota Law School, “second-degree felony murder does not require proof of intent to kill but rather proof of intent to assault someone. The only intent you have to show is an intent to cause bodily harm”.
Likewise, the University of Minnesota Law Professor, Susanna Blumenthal, stated that “second-degree felony murder does not require proof of intent to kill. What the prosecutor would need to establish is that the officer caused death while committing or attempting to commit a felony offence, which has been charged in this case as assault in the third degree”.
Interestingly, this is similar to the Nigerian position where all the prosecution need prove is an intention on the part of the accused person to commit grievous bodily harm which eventually resulted in the death of the victim.
It does not matter that the accused did not intend to kill the victim. Section 316(4) of the Criminal Code Act provides thus: ‘A person who unlawfully kills another under any of the following circumstances, that is to say… if the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without a warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence is guilty of murder … it is immaterial that the offender did not intend to cause death or did not know that death was likely to result’.
Nevertheless, the absence of strict criminal prosecution laws in the United States perhaps accounts for the sparse rate of convictions for errant law enforcement agencies who have little or no regard for human life.
Commenting on this situation, Minnesota Attorney General, Keith Ellison who added a second-degree murder to the charges against Chauvin, noted that getting a conviction against police officers is difficult, further adding that so far, there had been only one murder conviction in the state – against Mohamed Noor for the killing of Justine Damond.
Mohamed Noor, a Somali-American Minneapolis Police Department officer, fatally shot Justine Damond on July 15, 2017. On March 20, 2018, Noor was charged with second-degree manslaughter and third-degree murder. Prosecutors later upgraded the charges against Noor to second-degree intentional murder.
In April 2019, Noor was convicted of third-degree murder and manslaughter, but acquitted of intentional second-degree murder. In June 2019, Noor was sentenced to 12.5 years in prison. This is the first and only conviction of a police officer for murder in Minnesota.
However, there had been other several incidences of police brutality which, though charged, ended in an acquittal of the police officers involved. One famous incidence is that of Rodney King. On March 3, 1991, King was beaten by Los Angeles Police Department, LAPD, officers after a high-speed chase during his arrest for drunk driving.
Upon arrest, King was tasered, baton-beaten for more than 33 times, swarmed by about eight police officers, and by the time King was handcuffed, he was dragged on his abdomen to the side of the road to await the arrival of emergency medical rescue.
Due to police brutality, King reportedly suffered 11 skull fractures, permanent brain damage, broken bones and teeth, kidney failure and physical trauma. The four police officers involved in the grievous assault were charged with assault and use of excessive force.
On the seventh day of jury deliberations, the jury acquitted all four officers of assault and use of excessive force despite being presented with video evidence of the assault!
Sadly, after the George Floyd incidence, on June 12, 2020, another black American, Rayshard Brooks, fell victim of police brutality. He was shot and killed by an Atlanta Police Department officer, Garrett Rolfe, following a complaint about Brooks being asleep in a car blocking a fast-food store’s drive-through lane.
Brooks had, before the shooting, wrested away a taser from one the two officers (Rolfe and Brosnan) involved and ran away. He turned and fired the taser in Rolfe’s direction without hitting him.
In response, Rolfe shot his gun at Brooks three times, striking him twice in the back. Both officers stood over Brooks and only began medical assistance after two minutes. Rolfe was charged with eleven counts including “felony murder, five counts of aggravated assault, four police oath violations and damage to property”. Brosnan, on his part, was charged with aggravated assault and two counts of violation of oath.
As I had earlier noted, all the police officers involved in both George Floyd and Rayshard Brooks killing would have been charged for the offence of murder in Nigeria.
In any event, the rarity of convictions in the US, particularly for law enforcement officers, underscores the fact that much remains to be done by US legislators in curbing the spate of unjustified killings in the country.
But until then, the world awaits the outcome of the George Floyd and Rayshard Brooks murder trial. Will those trials result in convictions for the murderous police officers, or should we expect a similar outcome as that of Rodney King? Time will tell.