The language in Minnesota's third-degree murder statute has vexed attorneys for years, and the confusion over its application has only escalated with the impending trial of a former Minneapolis police officer charged with murdering George Floyd.
Prosecutors trying Derek Chauvin on charges of second-degree murder and manslaughter will argue before the Court of Appeals next Monday, outlining why they should be allowed to reinstate a count of third-degree murder against Chauvin based on a ruling the court issued earlier this month.
The late development, said some local attorneys, is a strategic move to give jurors more opportunities to convict Chauvin against the historic backdrop of public deference toward officers' legal right to use deadly force on the job, and the rarity of prosecutions against officers who kill civilians.
Chauvin is scheduled to be tried March 8.
"I think they're afraid he's not going to be found guilty of murder in the second degree, and [jurors will] go straight to manslaughter, and what [prosecutors] think is what he did is much more serious than manslaughter," said Joseph Daly, emeritus professor at Mitchell Hamline School of Law. "They want to include all possible offenses that could arise from these facts."
Chauvin was arresting Floyd on May 25 when he knelt on his neck for more than nine minutes while Floyd repeatedly said he couldn't breathe.
Chauvin's former colleagues, J. Alexander Kueng, Thomas Lane and Tou Thao, are charged with aiding and abetting murder and manslaughter in the case and are scheduled to be tried in one trial Aug. 23. Prosecutors also want to add aiding and abetting third-degree murder to their cases.
Third-degree murder offers a middle ground should jurors want to compromise with their verdict, some local attorneys said.
Second-degree unintentional murder is punishable by up to 40 years in prison. Third-degree murder is punishable by up to 25 years, and the sentence for second-degree manslaughter is up to 10 years in prison and/or a $20,000 fine. Sentences are dependent on a defendant's criminal background, among other factors.
"When you're litigating a case in front of a jury, it can be hard to know what they're going to think or how they're going to react," said Sarah Davis, executive director of the Legal Rights Center. "I understand the [prosecution's] approach even if I don't agree with it. We don't think third-degree murder is appropriate in this case."
The debate about the merits of third-degree murder in the Floyd case rests on whether the charge applies only when a defendant's actions put multiple people instead of a specific individual at risk and results in a death, or, whether it can apply when the defendant directs their attention at a single person.
Chauvin had been charged with third-degree murder, but Hennepin County District Judge Peter Cahill dropped the count in October, writing that the defendants had targeted Floyd and no one else.
According to state statute, third-degree murder applies when a defendant kills someone "by perpetrating an act eminently dangerous to others and evincing a depraved mind." Veteran attorneys have said it would apply, for instance, to someone shooting indiscriminately into a moving train. It is commonly used to charge drug dealers in overdose deaths. In the past 10 years, it has been charged in Minnesota 242 times and convicted 91 times. Some of the charged cases may be pending.
The Court of Appeals turned the common reading of the law upside down when it issued a Feb. 1 decision upholding the third-degree murder conviction of former Minneapolis police officer Mohamed Noor in the 2017 fatal shooting of Justine Ruszczyk Damond. The court ruled that the charge can apply when a single person is targeted, prompting prosecutors to ask Cahill to reinstate the count against Chauvin and add it for the first time against his co-defendants.
Cahill denied the request, stating his opposition to the Court of Appeals ruling. Prosecutors asked the Court of Appeals about two weeks ago to overturn his ruling and uphold its own interpretation of the law. Noor's attorney, Thomas Plunkett, has said he will ask the Minnesota Supreme Court to review the Court of Appeals' ruling.
"It's definitely messy and complicating things," Davis said. "It's going to lead to a lot of confusion for the community as this trial process gets started."
Some defense attorneys see the prosecution's move as a sign of weakness.
"They're scared … they can't get a conviction," said defense attorney Joe Friedberg. "They've got a problem on their hands, so they want to muddy the waters with third-degree murder, which is not applicable. I don't blame them."
Friedberg adheres to Cahill's reading of third-degree murder and believes the Court of Appeals' interpretation was "pure nonsense."
Former Ramsey County Attorney Susan Gaertner said it's not unusual for prosecutors to charge every count that's relevant, and that such a move does not indicate a lack of confidence.
But she warned that charging several counts can come with its own pitfalls.
"There is some risk in creating confusion [for] the jury if this charge is an option," she said. "All three charges require the jury to decide what was going through the defendant's mind when the act occurred."
The second-degree murder count requires that Chauvin wasn't intending to kill Floyd, but caused his death while committing a first- or second-degree felony — in this case, felony assault. Proving the felony assault element could be a concern for prosecutors, said Washington County Attorney Pete Orput.
Defense attorneys have argued that Floyd died of an overdose and pre-existing health conditions, and that the defendants acted within their training when they restrained him.
Third-degree murder could act as insurance, Orput said, especially since Hennepin County prosecutors successfully tried Noor on the charge. Attorney General Keith Ellison's office is leading the prosecution in the Floyd case with assistance from the county.
"I was a little surprised [prosecutors] insisted on going for it," Orput said of the lower murder charge. "They're going to go, 'Look, I'm giving [jurors] options here.' "
When presented with multiple charges, jurors can convict or acquit on all or any combination of the counts.
The Court of Appeals is not alone in its opinion. Defense attorney Michael Padden agreed with its ruling, and said third-degree murder is more appropriate than second-degree murder in Floyd's case.
"What they've done is they've created a situation where you could very possibly have a hung jury because you could have one or more jurors who are confused, or you can have a compromised verdict where you have a conviction on manslaughter, which would be a terrible loss," Padden said of the second-degree murder charge.