WHAT’S SO DEPRAVED? ANALYZING THIRD-DEGREE DEPRAVED-MIND MURDER IN MINNESOTA AFTER THE CHAUVIN AND NOOR TRIALS

By: Keenan Roarty, Volume 105 Staff Member

 

Third-degree depraved-mind murder has never had so much attention in Minnesota as it does now. In two recent, high-profile police brutality cases, Derek Chauvin and Mohamed Noor were both convicted of third-degree depraved-mind murder.[1] But under the unique quirks of Minnesota precedent, there is a meaningful chance that these convictions may not hold up on appeal.[2] This Post reviews the full history of the depraved-mind murder charge in Minnesota cases and lays out exactly what the controversy is as well as where courts should go from here.

I. WHAT’S THE DEBATE?

Like all good statutory interpretation debates, we start with the text. Under Minnesota law, third-degree depraved-mind murder applies to:

Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.[3]

There are two arguments related to this statute, one serious and one not-so-serious. The not-so-serious argument is that this act can only occur when a defendant threatens more than one person. That is, the act needs to be “eminently dangerous to others.” Because the statute uses the plural, some have argued that third-degree depraved-mind murder can only occur when one puts more than one “other” in danger.[4] In fact, Judge Peter Cahill, who presided over the Chauvin trial, originally dismissed the third-degree-murder charge in part for this exact rationale.[5] But such reasoning is clearly wrong. In Minnesota statutes, barring some other clear evidence of legislative intent, “the singular includes the plural; and the plural, the singular.”[6]

The other interpretation is that third-degree depraved-mind murder can only apply if the criminal act was “committed without special regard to their effect on any particular person/persons” and “committed with a reckless disregard of whether they injure one person or another.” That is, if the defendant’s actions were specifically directed at a person, that can never be third-degree murder. This is not about whether more than one person was put in danger (although such an analysis would be relevant), but about whether one’s actions were meant to be targeted towards a specific individual or individuals. If the essence of ordinary depraved-mind murder is to be extremely reckless,[7] then Minnesota depraved-mind murder, as interpreted here, would be about being extremely reckless generally, as contrasted with extremely reckless towards any person. This exact issue is up on appeal to the Minnesota Supreme Court in the Mohammad Noor case.[8]

Such an interpretation goes back over 120 years. In State v. Lowe, the defendant offered to take care of a pregnant women in exchange for money.[9] He brought her to and paid for a hotel room for her.[10] The pregnant women gave birth, and stayed extremely sick afterwards.[11] However, the defendant refused to take care of her, and let virtually no one else come and visit her for three weeks.[12] After the woman died, the defendant was convicted of third-degree depraved-mind murder.[13] The Minnesota Supreme Court overturned the conviction.[14] While careful to note that “we do not deem it necessary that more than one person was or might have been put in jeopardy by such act,” the court went on to say that “it is . . . necessary that the act was committed without special design upon the particular person or persons with whose murder the accused is charged.”[15] By contrast, in Lowe, the defendant’s act “was not a case where the act or omission did or could affect any person or persons who happened to come along, or be in the way, at the time of the act or omission.”[16]

The Minnesota Supreme Court spoke authoritatively, but without justification. It failed to explain why it is so important that the defendant’s actions (or, here, his omissions) were targeted toward a specific individual. Nearly a century later, the Minnesota Supreme Court seemed to offer a statutory justification for this interpretation. In State v. Hanson, the Minnesota Supreme Court  suggested that the phrase “without intent to effect the death of any person” must “exclude[] a situation where the animus of defendant is directed toward one person only.”[17] Three other additional Minnesota Supreme Court cases presumably uphold this interpretation of third-degree depraved-mind murder.[18]

The problem, however, is that there are cases that directly break this formula. In State v. Mytych, the Minnesota Supreme Court upheld a third-degree depraved-mind murder charge where a mentally disturbed woman shot and killed her ex-lover (and ex-lover’s wife) after failing to achieve reconciliation.[19] It is hard to read this, in Lowe terms, as an act “committed without special design upon the particular person or persons with whose murder the accused is charged.”[20] To complicate things further, Mytych was cited twice without disapproval by later Minnesota Supreme Court decision, although the courts “caution[ed]” that it was not typical.[21]

II. WHAT SHOULD COURTS DO ABOUT IT?

So what is a court to do? Lowe and Mytych are definitely contradictory. There is no way to put a square peg in that round hole. So, the question a court should consider is which makes better sense.

There is no convincing policy rationale as to why third-degree depraved-mind murder should exclude actions targeted in some fashion toward an individual. Third-degree depraved-mind murder is about punishing a truly evil mens rea—a form of extreme recklessness more blameworthy than the ordinary recklessness inherent in Minnesota second-degree manslaughter.[22] The essence of third-degree murder should not be about how many people are put in danger, or whether one’s actions were “specifically targeted” at the victim, but instead whether such actions constitute “perpetuating an act eminently dangerous to others and evincing a depraved mind, without regard to human life.”[23] State v. Hanson pointed to the phrase “without intent to effect the death of any person.” But there is no common-sense, plain meaning interpretation of this statutory phrase to mean that there can be no intent whatsoever in any capacity. Instead, the only forbidden intent is the intent to cause death.

The real rationale for hewing to the Lowe/Hanson view of third-degree mind murder at this point seems to be rooted in deference to precedent. But even this is shaky. There is conflicting precedent here in Mytych and in the subsequent two cases citing it without disapproval.[24] And although plenty of cases seem to espouse the Lowe logic, creating serious presumptive precedential value, all of these cases can be critically distinguished. In every case except Lowe in which a court adopted the narrower interpretation of third-degree depraved-mind murder, such court was simply affirming a trial court’s decision to not charge the jury on third-degree murder where the facts clearly supported higher charges (such as intentional murder).[25] Trial judges have tremendous discretion in not charging on lesser offenses. Once you therefore appropriately discount these cases, the Minnesota Supreme Court is only truly overruling State v. Lowe, a century old case.

As previously stated, the Minnesota Supreme Court has taken up this exact issue.[26] We should therefore have answers to this centuries-old question within a year.

 

[1] See Mitch Smith, Minneapolis Police Officer Convicted of Murder in Shooting of Australian Woman, N.Y. Times (April 30, 2019), https://www.nytimes.com/2019/04/30/us/minneapolis-police-noor-verdict.html [https://perma.cc/77DL-QWRA]; Tim Arango, Shaila Dewan, John Eligon & Nicholas Bogel-Burroughs, Derek Chauvin is Found Guilty of Murdering George Floyd, N.Y. Times (Apr. 20, 2021), https://www.nytimes.com/2021/04/20/us/chauvin-guilty-murder-george-floyd.html [https://perma.cc/NPA2-59Q7].

[2] Noor is challenging his third-degree murder conviction to the Minnesota Supreme Court. See Tyler Cashman, Minnesota Supreme Court to Review Mohamed Noor’s Third-Degree Murder Conviction, Kare (March 1, 2021 5:34 PM), https://www.kare11.com/article/news/crime/noor-legal-team-appeals-third-degree-murder-charge-to-minnesota-supreme-court/89-567efb3b-13e9-46ae-a63f-ad037fd777d7#:~:text=Noor%20was%20convicted%20of%20second,death%20of%20Justine%20Ruszczyk%20Damond.&text=MINNEAPOLIS%20%E2%80%94%20The%20Minnesota%20Supreme%20Court,former%20Minneapolis%20officer%20Mohamed%20Noor [https://perma.cc/ZY6S-GNL2].

[3] Minn. Stat. § 609.195 (2020) (emphasis added). There is also another third-degree murder for those who cause death through the selling/delivery/or administering of a controlled substance. See id.

[4] See, e.g., Solange Reyner, Dershowitz to Newsmax TV: 3rd-Degree Murder Charge in Floyd Case Likely Won’t Stick, Newsmax (March 11, 2021 2:13 PM), https://www.newsmax.com/newsmax-tv/third-degree-dershowitz-george-floyd/2021/03/11/id/1013476/ [https://perma.cc/HHH6-CZDC].

[5] Order and Memorandum Opinion on Defense Motions to Dismiss For Lack of Probable Cause at 54, State v. Chauvin, No. 27-CR-20-12646 (D. Ct. Minn. 2020), available at https://mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12646/Order10212020.pdf [https://perma.cc/R4PM-3ZHK].

[6] See Minn. Stat. § 645.08 (2020).  

[7] See Arave v. Creech, 507 U.S. 463, 475 (1993) (describing the similar “abandoned and malignant heart” murder charge as “a term of art that refers to unintentional homicide committed with extreme recklessness.”).

[8] See Cashman, supra note 2.

[9] See State v. Lowe, 68 N.W. 1094, 1094 (Minn. 1896).

[10] Id.

[11] Id.

[12] Id. at 1094–95.

[13] Id. at 1095.

[14] Id.

[15] Id.

[16] Id.

[17] State v. Hanson, 176 N.W.2d 607, 614–15 (Minn. 1970).

[18] See, e.g., State v. Reilly, 269 N.W.2d 343, 349 (Minn. 1978); State v. Stewart, 276 N.W.2d 51, 54 (Minn. 1979); State v. Carlson, 328 N.W.2d 690, 694 (Minn. 1982).

[19] See State v. Mytych, 194 N.W.2d 276, 283 (Minn. 1972).

[20] See State v. Lowe, 68 N.W. 1094, 1095 (Minn. 1896).

[21] See State v. Leinweber, 228 N.W.2d 120, 123 (Minn. 1975); State v. Wahlberg, 296 N.W.2d 408, 417 (Minn. 1980). See also State v. Padden, No. C1-99-506, 2000 WL 54240 (Minn. Ct. App. 2000) (using Mytych to uphold third-degree depraved-mind murder even where the defendant acted specifically towards the victim).

[22] See Minn. Stat. § 609.205 (2020) (second-degree manslaughter is acts causing death “by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.”).

[23] Minn. Stat. § 609.195 (2020).

[24] See supra notes 19, 21.

[25] See State v. Hanson, 176 N.W.2d 607 (Minn. 1970); State v. Reilly, 269 N.W.2d 343, 349 (Minn. 1978); State v. Stewart, 276 N.W.2d 51, 54 (Minn. 1979); State v. Carlson, 328 N.W.2d 690, 694 (Minn. 1982).

[26] See Cashman, supra note 2.