George Floyd’s family and their attorney have called upon the state of Minnesota to charge the officers responsible for Mr. Floyd’s death with First Degree Murder. This is an understandable position in light of the shocking cell phone video documenting police behavior so depraved and cruel that it set into motion extensive protesting throughout the US and the world. So why would the Minnesota Attorney General only charge the lead officer with Second Degree Murder? While it feels wrong to have what we see in that video be anything less than ‘the worst’ kind of murder, the charges that may be ethically brought by the prosecutor must be ones that he has an expectation of proving at trial based on the facts of the case.
In Minnesota, First Degree Murder occurs when the defendant “causes the death of a human being with premeditation and with intent to effect the death of the person.” The requirement of premeditation creates a difficult hurdle in the current case under the facts that are known at this point. Minnesota law dictates that "premeditation" means to consider, plan or prepare for, or determine to commit, the act referred to prior to its commission.” Proof of extensive planning or preparation is not required but the state "must prove that, after the defendant formed the intent to kill, some appreciable time passed" during which the defendant considered, planned, prepared, or determined to commit the act.
The argument could be made in this case that the defendant did premeditate the murder. Nearly nine minutes elapsed while the defendant knelt on the victim’s neck who repeatedly stated he couldn’t breathe and then became unresponsive. During this length of time the defendant had the opportunity to form the requisite intent to kill Mr. Floyd and then took time to consider his actions and then completed the act. The Attorney General appears to have decided that proving this beyond a reasonable doubt to a panel of jurors might be too great of a gamble given the low rate of convictions in cases against police officers.
An Intentional Second Degree Murder occurs when the defendant “causes the death of a human being with intent to effect the death of that person or another, but without premeditation.” An Unintentional Murder in the Second Degree is where the defendant “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 in the first or second degree with force or violence.” While proving intent would require more of the jury’s attention, the facts of this case would fit easily within the Unintentional Murder definition. All the prosecutor would need to prove is that the officer caused the death while committing or attempting to commit a felony offense of assault in the third degree. While it would not afford the lengthier sentence of life imprisonment from a First Degree Murder conviction, the likelihood of success is fairly high on this Murder Two charge. The maximum sentence for second degree murder in Minnesota is 40 years in prison.
The case currently includes lesser charges which would be much easier to prove. In Minnesota, Murder in the Third Degree occurs when the defendant “causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.” It does not require the intent to kill, only the intent to cause bodily harm to the victim. It seems that the original charge of Third Degree Murder was brought because it has such a higher likelihood of succeeding on the facts of the case and convictions against police officers are notoriously hard to obtain in the U.S. This charge was met with great resistance as it was deemed an injustice by the family of the victim and the public in general. The maximum sentence for a Third-Degree Murder is 25 years.
The investigation into the case is ongoing so it is possible that if new facts are discovered the Attorney General could amend the charges. If you have a pending criminal case in Washington and have questions, contact us at info@brumleylawfirm or (253) 236- 4079.