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.
Minnesota retains felony murder doctrine, and it retains a particularly weird form of it. Of those jurisdictions that still have felony murder, nearly all have adopted what is known as the “merger rule” or the “independent felony” rule. Under that rule, the underlying felony—known as the predicate felony—must be separate from the act causing death. As a practical matter, that generally means that assault and battery cannot serve as the predicate felonies for felony murder. Thus, if you commit an arson and accidentally kill someone inside, that’s felony murder. By contrast, if you punch someone and accidentally kill him, that’s not felony murder. That is the law in most jurisdictions.
Minnesota, however, is one of just a couple jurisdictions that has rejected the independent felony rule, and it therefore allows assault to serve as a predicate. (Making matters worse, the Minnesota Supreme Court in recent years has mangled the definition of assault.)
Ellison’s new charges against Chauvin rely on that quirk in Minnesota law. The new charges allege that Chauvin assaulted Floyd, and that assault caused his death. It is a way of seeking a conviction of second-degree murder without proving an intent to kill. This strategy is well-established in Minnesota law, but as a matter of logic and policy, Minnesota’s felony murder doctrine is awful. It is applied most often against poor defendants, not police officers. If you are the sort of person who cares about criminal justice reform, you should not necessarily cheer Ellison’s use of this deeply flawed approach to felony murder.
That all aside, the new charge is mostly symbolic. Felony murder is, in the end, not much different from depraved heart murder, which was already charged.
First, under Minnesota law, the predicate felony must pose a “special danger to human life,” both in the abstract and as committed. That means the felony must pose some risk of death, which is similar to what depraved heart murder requires. The difference is procedural, in that depraved heart recklessness is determined by the jury while special danger to human life is found by the court. This doctrine—allowing judge rather than jury to determine what is arguably an essential finding for conviction—is highly suspect under Supreme Court case law. Relying on it for conviction is risky. (If Chauvin’s lawyers are smart, they will demand a jury finding on special danger, and they will also object to using assault as a predicate. These arguments won’t win in trial court, but they will create issues for appeal.)
Second, although felony murder is a second-degree murder and “depraved-heart” murder is third-degree murder, they are actually punished the same. Punishment is determined primarily by the Minnesota Sentencing Guidelines, which, unlike the federal guidelines, are not merely advisory. Under the Minnesota guidelines, both felony murder and depraved heart murder have a presumptive sentence of 150 months. Both would require a special jury verdict to go above 180 months. (By contrast, second-degree intentional murder would have a presumptive sentence of 306 months.) In other words, while the formal statutory classification and maximum statutory punishments are different, the likely punishment for second-degree felony murder would be the same as the likely punishment for third-degree murder.
There are also strategic considerations. Giving the jurors more options can help, but it also can confuse them. Before there were just two crimes at issue. Now, with the addition of felony murder and the assault predicate, there are four crimes at issue. That means four crimes that must be defined in jury instructions. More instructions can be confusing, and more options can make it harder for a jury to reach unanimity.
It’s a complicated strategic calculus, and there are no right answers. None of us can predict with any certainty what the jury will do, so none of us can state with confidence which charges are most likely to succeed. Personally, if I were prosecuting the case, given all the considerations above, I’d probably have stuck with the simpler initial charges. While Ellison’s new charges have obvious political appeal, they are more questionable as litigation strategy. They will not necessarily make it easier to convict Chauvin, and they could backfire.
Photograph of Keith Ellison by Scott Olson/Getty Images.