Following the complaint charging former Minneapolis Police Officer Derek Chauvin with a dubious count of murder in the third degree, the state attorney general, Keith Ellison assumed control of the prosecution and a new complaint issued increasing the top count to Murder 2.
Why this was done is curious on two levels. The only difference in the net result upon conviction would be an increase the maximum sentence from 25 years to 40 years, which would seem to conflict with the cries to reform sentences and reduce mass incarceration. But more to the point, the primary distinction seems to be symbolic, that second degree murder feels more serious than third, and that would come closer to sating the demand for blood.
In doing so, Ellison charged Chauvin with the Minnesota version of felony murder. This, too, raises a challenge, as criminal justice reformers have been demanding the elimination of felony murder, making substantial headway in California. Yet, it’s used here and no one seems to remember how bad the felony murder law was a month ago. It almost as if good and bad law depends entirely on how much they hate the individual defendant, but to suggest such a thing would be to acknowledge they are merely unprincipled hypocrites, and who would do such a thing?
Subd. 2.Unintentional murders.
Whoever does either of the following is guilty of unintentional murder in the second degree and may be sentenced to imprisonment for not more than 40 years:
(1) causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting;
What exactly will form the predicate “felony offense” is left unstated in the complaint. Following the discussion of Chauvin’s initial complaint, I heard from Minnesota prawf and criminal defense lawyer, Ted Sampsell-Jones, who gave me some of the local flavor behind the complaint.* One of the points he made was how loosely the courts treat pleadings. Another point raised was the the courts had largely read “depraved mind” out of the third degree murder statute, although caselaw suggests that when the conduct is directed at a single individual, it can’t evince a “depraved mind” as contemplated by the statute.
But is there a case for felony murder here? Assuming that the underlying felony is the assault on George Floyd, the placement of a knee over his neck by a police officer while effectuating an arrest, this may prove a difficult, if not impossible, case to make.
Initially, there’s the problem of the merger doctrine, which states that where the elements of the underlying felony are part of the murder, the two merge so as to preclude the murder charge. But the Minnesota Supreme Court has neither adopted, nor rejected, the merger doctrine, If it’s so inclined, this would be the perfect case to do so. But before it gets there, there would need to be a conviction.
The issue at trial may be that a police officer, in the course of effecting an arrest, committed an assault by using an otherwise authorized restraint under circumstances that don’t warrant it. Bear in mind, this isn’t about the knee on the neck after Floyd lost consciousness, but before, since his maintenance of the restraint after is, maybe and to some extent, the cause of death.
But if an imperfect use of force by a police officer in the course of an otherwise lawful arrest would constitute a felony, almost no arrest would survive scrutiny. That, of course, wouldn’t trouble many people, but to expect a jury to adopt it defies experience. The prosecution will focus on the certainty of impropriety based on the outcome. The defense will focus on the uncertainty of the outcome in the process of effecting an arrest on a big, strong guy who resisted, refused to get into the squad car, went limp and fell to the ground and, if he chose, could have lashed out at the officers at any moment if they let up on his restraint.
This isn’t to say he would have, but he could have, and that’s all the defense needs to create doubt that there was any predicate felony arising from a cop doing his job as best he could under the circumstances, even if Monday morning quarterbacks decide he could have done better.
There is a belief, with some merit to it, that the upcharge to Murder 2 is being done to soothe the fevered brow of protesters, who demand justice for George Floyd but may be more impressed by the degree of murder than they should. Since the Murder 3 didn’t stop the protests, not to mention the opportunistic rioting and looting that came with it, maybe upping it to Murder 2 will do the trick?
For now, the symbolism is there, a new complaint, a new charge, a lower number. Not low enough for Ben Crump, perhaps, but lower. Isn’t that close enough?
By the time this goes to trial, if it goes to trial, the protesters will have gone home, moved onto the next issue of the moment and this case, this charge, this death, will be a footnote. This isn’t to say it should, but given the constant stream of catastrophes these days, the ability to focus on anyone, no matter how serious, is strained.
So what happens should the case go to trial and Derek Chavin is acquitted because Ellison overcharged with a Murder 2 count that can’t be proved? Maybe there will be new protests, and more riots, or maybe no one will notice because they will be back to sending pizzas with love notes to their first responder heroes who saved them from coronavirus.
*I asked Ted to put them in a comment so everyone would be able to see, but he didn’t. He did, however, twit about it.