(NewsNation) — We are continuing our effort to ask the right questions in connection with the five Memphis police officers charged in the beating death of Tyre Nichols.
First of all, let’s be clear: No one I’ve talked to, cops or lawyers, think that what we’ve seen on that video isn’t criminal. It’s all hard to believe and sickening.
So, you can understand politically why the elected district attorney felt he had to throw every book he could think of at the officers. But from a legal perspective, in an effort to make a statement to the public, they also may have actually overcharged and even potentially endangered their case.
Court records showed that all five former officers — Tadarrius Bean, Demetrius Haley, Desmond Mills Jr., Emmitt Martin III and Justin Smith — each face charges of second-degree murder, aggravated assault, aggravated kidnapping, official misconduct and official oppression.
Remember, each case will be resolved separately and each officer’s action scrutinized and ultimately judged on its own.
In Tennessee, second-degree murder is defined in part as a knowing killing of another and that “In a prosecution for a violation of their section, if the defendant knowingly engages in multiple incidents of domestic abuse, assault or the infliction of bodily injury against the single victim, the trier of fact may infer that the defendant was aware that the cumulative effect of the conduct was reasonably certain to result in the death of the victim, regardless of whether any single incident would have resulted in the death.”
So, prosecutors are going to have to prove that each of these five officers effectively knew that what they were doing was reasonably certain to result in the death of Nichols. Now, that’s going to be tough, but maybe not a tough second-degree murder defense.
Again, it doesn’t mean they’re not going to be found guilty of something serious and it doesn’t mean I’m defending their conduct. But we still have to abide by laws, and we have to abide by statutes.
There are real cautionary tales that prosecutors should heed going into this, like the case against the officers charged in the death of Freddie Gray in Baltimore.
Gray was arrested with what some said was unnecessary force and then placed unsecured in the back of a police van for 40 minutes, where the medical examiner said he suffered injuries during the ride.
When officers got to the police station, he was unresponsive. Doctors later discovered his neck had been broken. He died a week later.
Then, after several days of violent protests in Baltimore, where at one point the Maryland National Guard was called in, the six officers involved were charged with offenses ranging from second-degree depraved-heart murder to reckless endangerment and involuntary manslaughter.
In the end, not one officer was convicted of anything. Then-Baltimore City State’s Attorney Marilyn Mosby was initially lauded for filing the charges and later skewered for overcharging and failing to get a conviction on a single charge.
It is not apples to apples. There’s no video in Gray’s case, no repeated documented blows by officers. But it’s clear prosecutors in the Nichols case feared the backlash from that video, and they moved quickly to file charges.
That was smart, but it happened in a rush, with a prosecutor short sighted with the charges.
Voluntary manslaughter in Tennessee probably would not apply because that’s defined as the “intentional or knowing killing of another in a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.”
What would have been the adequate provocation here? But involuntary manslaughter and specifically reckless homicide, sure, could fit the bill with a possible sentence of two to 12 years in prison.
In the video above, Abrams asks David Ridings, Tennessee-based criminal defense attorney and former prosecutor in the Nashville district attorney’s office, what he thinks about the charges.
The views expressed in this article are those of the author, and not of NewsNation.
