Thread by @DrRJKavanagh

The decision to dismiss the 3rd degree murder charge against Derek Chauvin (while upholding the 2nd degree charge) was legally correct.

It remains disappointing that he is not being prosecuted for 1st degree murder, a charge that is arguably sustainable.
nytimes.com/2020/10/22/us/…

Under Minnesota law, third degree murder applies where a person unintentionally, but with depraved indifference, "causes the death of another by perpetrating an act eminently dangerous to others."

Here the judge ruled that Chauvin didn't act in a way that was dangerous to others - only to George Floyd.

That makes sense.

This is distinguishable from the case of Mohamud Noor in the killing of Justine Damond (who was convicted of third degree murder) where he shot into the dark of night in a way that was arguably reckless and put the lives of people other than Ms. Damond in danger.

The judge did uphold the second degree murder count against Chauvin (and the aiding and abetting counts against the other three officers).

The second degree murder count charged in the Floyd indictment is felony murder, so the prosecutors do not have to show that Chauvin intended to kill Mr. Floyd, only that his death occurred during the commission of a felony, in this case, assault.

In proving the underlying assault, they will have to prove the intent necessary for that charge, which, under Minnesota law, is the intent to cause some degree of bodily harm.

I have previously argued, and still believe, it would be possible to prove that Chauvin intended to kill Mr. Floyd, and that he should be charged with premeditated murder. He had his knee on Mr. Floyd's neck for 8 minutes, including 3 while he was unconscious.

In any case, the prosecutor would not lose anything with this strategy, since, just as manslaughter in the second degree is a lesser included charge now, if they charged first degree murder, they could still charge second degree murder as a lesser included offense.

This is how the Minnesota courts define premeditation for the purposes of murder in the first degree.

"The requisite plan to commit first degree murder can be formulated virtually instantaneously."

State v. Pilcher, 472 NW 2d 327, 335 (1991).

Minnesota law requires "some appreciable time" from "the formation of the intent to kill and the actual killing."

The time Chauvin held his knee on Mr. Floyd's neck constitutes plenty of premeditation.

I really hope the AG reconsiders on this point. To me, charging felony murder is weak. I know it carries a very stiff sentence. I'm not talking about that part so much as looking at what it says about what you think of the strength of your case.