First-Degree-Murder is Not a Provable Option in the George Floyd Case

Gov. Tim Walz of Minnesota has asked Attorney General Keith Ellison to assist Hennepin County Attorney Mike Freeman in the pending case surrounding the death of George Floyd. Up to this point, the Hennepin County Attorneys Office was handling the prosecution. The move by the governor is supported by the Minneapolis City Council and the Mayor

Ellison is a former criminal defense lawyer, Congressman, and is now the Attorney General for Minnesota.

 It is not unusual in Minnesota for the Attorney General’s Office to take over cases in counties across the state. However, their participation is generally based on the particular county’s lack of resources. Hennepin County prosecutors have virtually unlimited funds and personnel. The move is considered to be politically based and designed to reduce racial tensions. Ellison is African American and is very liberal.

The independent autopsy examiner brought in by the Floyd family has determined that Floyd died from asphyxiation. This conclusion has rallied many to call for first-degree-murder charges. The Minnesota Supreme Court has essentially said the following about first-degree-murder:

To be guilty of first-degree premeditated murder, the defendant must have caused the death of someone with premeditation and with intent to effect her death. The legislature has defined “premeditation” to mean “to consider, plan or prepare for, or determine to commit, the act referred to prior to its commission. If only intent were proven without premeditation, the defendant would be guilty of murder in the second degree. The distinction is concerned with the time involved and the defendant’s state of mind. Premeditation, by definition, requires some amount of time to pass between the formation of the intent and the carrying out of the act. 

While we have long recognized that premeditation requires no specific period of time for deliberation or extensive planning, the state must always prove that, after the defendant formed the intent to kill, some appreciable time passed during which the consideration, planning, preparation or determination took place.

Although the video capturing Floyd’s death is sad and horrific, we are unaware of any evidence that would meet the above standard. Ellison probably knows this, but his approach will likely be more sophisticated and convincing than Michael Freemans.

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