Explaining the New Second Degree Murder Charge Against Derek Chauvin

The political rationale is obvious, but the actual strategic value is less clear.

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On Wednesday, Minnesota Attorney General Keith Ellison, now in charge of the prosecution of Derek Chauvin and three other officers involved in the death of George Floyd, amended the charges against Chauvin to include second-degree murder charges. Some of the initial press reports incorrectly stated that the new charge was second-degree intentional murder, but what is charged is second-degree felony murder. 

The updated complaint against Chauvin now alleges three counts: 1) second-degree felony murder, 2) third-degree depraved heart murder, and 3) second-degree manslaughter. The jury will have the option of convicting Chauvin of any or all of the above. If convicted of more than one, he would be sentenced only for the most serious convicted offense.

The political rationale for new and (ostensibly) more serious second-degree murder charge is obvious, but the actual strategic rationale is less clear.

Felony murder, like “depraved heart” murder, is an ancient doctrine inherited from English common law. It holds that anyone who accidentally kills another while committing a felony is guilty of murder. The doctrine is highly controversial, in part because at common law there were only a handful of felonies, while today there are hundreds. It has been abolished in England and in several American jurisdictions.

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  1. Scroop Moth

    The best political rationale for the charges is to avoid a certain backlash from an acquittal rather than gratify the immediate demands for severe charges. The risk of public disorder following a "not guilty" or mistrial is greater than the opportunity to dampen current disorder with charge inflation.

    Some analysts have asserted that 2nd degree murder allows the filing of charges of aiding and abetting, which are not available for 3rd degree murder. The aiding and abetting charges, in turn, enable the prosecutor to flip a witness in exchange for a plea, and obtain testimony on state of mind.

    There's been little discussion of the police reports, if any, filed by the arresting officers. Presumably, any untruthfulness would be very damaging evidence of guilt.

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      Billy Wright

      The aiding and abetting angle is fascinating. Can I ask a follow-up? Does this mean a 2nd degree murder conviction is a predicate for the aiding and abetting charges? That is, taking into account the potential for a compromise verdict in the post below, if the jury acquits on 2nd degree, would that moot the aiding and abetting charges against the other officers? Makes this a riskier play that way.

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      1. Ted Sampsell-Jones

        the aiding and abetting angle is fascinating and very complicated. As Scroop said above, some people have asserted that you can't do aiding and abetting for m-3. That's not actually clear in MN law, however -- as in there are no cases so holding (at least not that I'm aware of). And if it is true, then there would also be no such thing as aiding man-2. So it's hard to understand why they charged the former but not the latter.

        As to Billy's question... an accomplice can be convicted even if the principal is not. So technically, even if Chauvin is not convicted, the others could be. See Minn. Stat. 609.05, subd. 4. As a practical matter, however, that's be extremely unlikely. It would depend in part on whether all four are tried together or separately -- which will be a hugely significant aspect of this.

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    John Bowling

    Thanks for this. It helps clarify several things about second-degree felony murder.

    However, it would also be helpful if a brief description of "third-degree depraved heart murder" and "second-degree manslaughter" were given in the article.

    TMD, which brought me to this article, says, "Generally speaking, second degree murder is charged in cases where a person deliberately takes the life of another (without premeditation, which would bump it up to a first degree charge). But Minnesota law also permits a second-degree charge in cases where the killing was not intentional, but took place while the perpetrator was already committing another violent felony—in this case, felony assault. Minnesota’s third-degree murder statute, by contrast, applies in cases where a person kills another “by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard to human life.” And a few paragraphs down it says that "The third degree murder and second degree manslaughter charges were announced on Friday."

    So I think I'm clear on (1) second-degree felony murder, (2) second-degree murder, and (3) third-degree murder. ... But what is (4) second-degree manslaughter in Minnesota law? Or is "second-degree manslaughter" just synonymous with "second-degree murder"?

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      Ceich62

      See the author’s previous article on the site.

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        John Bowling

        Thanks! That was also a great article and I think it filled out the picture for me. In case anyone else might have my confusion over how it all breaks down, I think it is as the following outline shows, in order of seriousness (assuming I've understood it--I'm a legal ignoramous):

        I. Murder: intentional or unintentional
        A. Intentional
        1. First-Degree: the unjustified, deliberate taking of another's life, with premeditation.
        2. Second-Degree: the unjustified, deliberate taking of another's life, without
        premeditation.
        B. Unintentional
        *1. Second-Degree: the unintentional taking of human life by an act that "took place
        while the perpetrator was already committing another violent felony..."
        *2. Third-Degree: "the unintentional taking of human life by an act evincing a wanton
        and reckless disregard of life."
        II. Manslaughter: always unintentional
        A. First-Degree: ...
        *B. Second-Degree: the unintentional taking of human life by an act of "gross
        negligence coupled with the element of recklessness."

        The asterisks mark the charges against Chauvin.

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    Ms. SSM

    Thank you for this article! The information was very helpful. I’ve been looking for a good breakdown of the statutes.

    You sound like a fellow trial attorney so I’m going to quibble with a few of your strategic arguments. First an ethical issue. You take issue with felony murder -“you should not necessarily cheer Ellison’s use of this deeply flawed approach to felony murder.”
    I agree this is a strange way to do felony murder. However be that as it may if this charge is most often used against poor defendants it absolutely should be used against police officers. My prosecutorial duty to always seek justice means using every available tool. It would be the height of injustice to inject my criminal law reform thoughts into my indictment. For example personally I think marijuana should be legal but I didn’t stop prosecuting it. There can not be a separate justice system for poor defendants and another more ideal system for officers. Ellison is wise political to avoid the appearance of not using every weapon in his tool box regardless of his personal feelings on the tools.

    I also think I would have gone for the reach on 2nd degree. It increases the likelihood of getting 3rd. I was surprised when I read the statutes that he didn’t originally charge 2nd degree. The compromise verdict (which juries often do even though they aren’t supposed to) would net me little in the original indictment. I think you are better off with the appearance of greater charges in the indictment. Ellison has basically charged in the alternative and given the jury more options.

    Lastly I don’t think I’ve ever tried a murder case with only 4 charges on the indictment. Heck I don’t think I’ve tried many major felonies with only 4 charges. The jury instructions in a death are going to be long and complex no matter what. There is no point in shorting your charges to avoid giving lengthy instructions. It’s baked in.

    Again thanks for the information. This is why I am willing to pay for the Dispatch.


    Again thanks for the very informative article.

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      John Bowling

      Regarding felony murder, you say: "if this charge is most often used against poor defendants it absolutely should be used against police officers. My prosecutorial duty to always seek justice means using every available tool. It would be the height of injustice to inject my criminal law reform thoughts into my indictment. For example personally I think marijuana should be legal but I didn’t stop prosecuting it. There can not be a separate justice system for poor defendants and another more ideal system for officers."

      That's an interesting angle. It brings to mind a point Sarah Isgur was making on Advisory Opinions in regards to the sexual assault allegations. She made the point that if the media's approach to the allegations against Kavanaugh were flawed, we shouldn't support that flawed approach for Biden.

      Granted, this is where law not being coterminous with the domain of ethics might be relevant. But your perspective on "seeking justice" seems to extend beyond the specifics of the Chauvin case. In other words, you're letting what it means to "seek justice" for Chauvin to be a cascade of information on prior, unrelated cases. If making the charge of felony murder is at the discretion of the prosecutors then not making that charge isn't a legal failure. Is allowing that cascade of information to influence your decision, then, legally appropriate? I genuinely don't know, so I'm not trying to make a point with that question-maybe it is. But it seems that if we agree with Isgur's point, it's not ethically appropriate, right?

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        John Bowling

        Let me throw in some distinctions here, in light of Ted Sampsell-Jones's (TSJ, if I might) response above, which he posted almost simultaneously as I posted mine.

        1. Moral/Ethical
        a. Obligatory
        b. Permissible

        2. Immoral - impermissible

        3. Legal
        a. Legally obligatory
        b. Legally permissible.

        So we might have 1a + 3a = Legally and ethically obligatory... and so forth.

        It sounds like TSJ is saying the law in question is 1b + 3a or 3b. My comment above is suggesting it is 2 + 3b.

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          Ms. SSM

          S S M1 min
          I’d say 1b + 3a. Seeking Justice is what I was always taught as my prosecutorial duty. Not necessarily to seek convictions. We can not win at all costs. I would not cut corners with the law but i am obligated to do all in my legal power to uphold it. The duty to uphold the law includes those I think are unwise. That duty then requires you to do everything within the law to get a just result. You can’t be sqeemish about using well settled charges because you don’t like them. All charges after all are at the discretion of the prosecutor and it would be terrible to be more lenient in an officer prosecution then you would be against any other defendant.

          That said it’s an interesting argument you’ve made. There is really only one area of the law I would have ever refused to enforce and that’s the death penalty. Fortunately my DA knew how I felt about it so she never asked me. I will assist in an emergency for the conviction but I’m not touching any of the sentencing phase.

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          1. Ted Sampsell-Jones

            I would say legally permissible but not required. Prosecutors are not required to pursue the most serious charges they can. They have discretion to decline. Prosecutors here regularly decline to pursue assault-felony-murder. (Because you could literally pursue them in every single homicide case -- that's the problem with the doctrine.) Ellison's decision to charge is permissible exercise of discretion, but Freeman's initial decision not to charge was also a permissible exercise of discretion.

            When I said "ethical" before, I meant in the particularly legal sense of whether something is consistent with the rules of professional responsibility governing lawyers, and the special rules governing prosecutors. Ellison's charges are clearly ok on that front.

            In the broader moral/political sense, I would say that the MN legislature or Supreme Court should abolish assault-felony-murder. I don't think that's the line prosecutor's moral responsibility. Maybe Ellison is in a slightly different position as AG, but that judgment is above my pay grade!

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    2. Ted Sampsell-Jones

      Thanks very much for the response.

      To clarify, I don't think the new charge is at all unethical. The assault-felony-murder doctrine is well-established in current MN law, and there is clearly a factual basis for the charge. It is a valid charge. My point is simply that the assault-felony-murder law is a bad law, and I don't like seeing it used against either poor people or cops. I worry that Ellison's use of it here will just entrench it further in MN law.

      As far as pleading standards... in MN state practice, it's common for felonies and even murder complaints to be charged out with 1 or 2 counts. It isn't like federal practice, where long multi-count indictments are the norm. And our jury instructions are luckily relatively streamlined. Noor case instructions were just 7 pages, about half of that was the elements of the charged offense.

      Bigger picture, you are definitely right that there are some possible benefits to the additional charge. Gives jury more options for compromise verdict, rational or not. But there are also some drawback. Like if you get only m-2 and not m-3, now you're stuck with a conviction more vulnerable on appeal. It's definitely a difficult call, a hard strategic calculus. I'm not convinced of the pro-con balance here, in part because it is not actually a more serious charge.

      Anyway, thanks again for weighing in. Many developments still to come, I'm sure.

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      Stephanie

      Not a lawyer, but some of the former US attorneys who have podcasts have commented regarding other cases, that they try to bring as many indictments as they can, expecting some of them won't survive the jury process.

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