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Murder By Degrees

J. Bradley Klepper
Attorney at Law

This year has been crazy. I have written articles during various stages of the Covid-19 pandemic, during record numbers of people filing for unemployment and during disruption of the court system.

I now find myself writing this article during a period of civil unrest with protests occurring in numerous cities across the country. Needless to say all this has created a wide range of thoughts and emotions.

With all that being said, one of the few bright spots so far this year is that my wife, daughter and I get to discuss all of these issues in great detail.

Now for some background, my wife and daughter are both smart, tough, creative, empathetic, and compassionate and will both come at you like a spider monkey if they feel you have wronged them or someone they love (had to use the old “Talladega Nights” quote there). I admire all of these things in them tremendously.

I tell you all this because this year we have had the privilege of having conversations about everything that has happened. Though the three of us may not always agree I will cherish our conversations forever.

The most recent conversation we had occurred last night and involved the charges brought against the officer in death of George Floyd.

As many of you know, this particular officer was charged with third degree murder and second degree manslaughter. My wife and daughter were both curious as to why it would only be prosecuted as third degree murder. We had a conversation about the various “degrees” of murder and why this charge was selected (due to limited space we are not going to discuss the manslaughter charge).

Without reproducing the text of the statute, for a conviction of first degree murder, Minnesota requires: (i) premeditation; and (ii) intent to cause the death of the person or another. In this scenario the prosecution would have to prove both premeditation and intent. A pretty high bar. Conviction of first degree murder results in imprisonment for life.

Second degree murder under the Minnesota statutes can be either intentional or unintentional. Intentional murder requires that the person causes the death of another with: (i) intent to cause the death of the person but without premeditation. However, under what is commonly referred to as second degree felony murder a person can be guilty of second degree murder without intent to cause the death if the act was done while committing a felony. Under Minnesota law it appears that first degree assault may be sufficient to satisfy the felony requirement. A conviction of this charge is punishable by 40 years in prison.

Finally, under Minnesota law, a person is guilty of third degree murder if, without intent, causes the death of another by “perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.” Conviction of this charge results in imprisonment for not more than 25 years.

In the case of the death of Mr. Floyd the prosecutor has brought charges for third degree murder against the officer.
Is this the right charge to be brought? Not my call. Could other charges have been brought? Possibly.
Instead of the third degree murder charge I believe that, even without a showing of intent, that a second degree felony murder charge could have been brought. The underlying felony being first degree assault. As previously mentioned this could increase potential jail time from 25 to 40 years. Of course, this may be a harder case to make and not the slam dunk that may result from the existing pending charges.

Ultimately this decision is up to the prosecutor who knows far more about the case than I will ever know.
Now before anyone starts sending me tacky emails please understand that I wrote this article only to illustrate the differences in charges and how the same set of facts may fit into one or more charge.

Brad Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers. Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.

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