Recent years have brought a number of high-profile criminal cases to the forefront.
To the majority of uninformed citizens, the deluge of recent prosecutions and very public trials may indicate a renaissance of social equality and judicial responsibility. Those of us familiar with the criminal justice system recognize the parade of press conferences as examples of prosecutorial sleight of hand.
From the murder of George Floyd to the siege at the Capitol, prosecutors act as if they are diligently working to bring justice to bear. Yet they consistently either undercharge the defendants or fail to use the most effective tools at their disposal.
One of the tools I refer to is the felony murder statute. Most jurisdictions have enacted this law. It allows a defendant to be charged with murder if a death occurs during the commission of a felony, without any need to establish the perpetrator’s intent to kill. Using George Floyd’s murder as the prism, I will attempt to detail the proper use of the felony murder statute and explain why it should have been employed in this case.
Let’s consider the root action of the murderer in this case: suffocating Floyd by kneeling on his neck. Applied against an immobile victim, this action is not allowed by rule or law. As such, any element of this invalid action that violates a statute must be a crime, and any severe crime, an act of violence, must be a felony.
The kneeling on George Floyd’s neck was a violent crime by itself whether or not it was intended to cause death or severe bodily injury. To prove this was a murder, the prosecutor must establish certain elements of the crime for a jury including motive, opportunity, and method. This is part of the burden of proof.
Felony murder requires no such burden, however. A prosecutor need only establish that a felony was committed and someone died as a result. Therefore, Floyd’s murder should have been prosecuted as felony murder.
Instead, the crime was characterized as a second-degree murder charge. That shaped the deliberations as to whether the murderer in question had the intent to kill. This argument would have been irrelevant had the prosecutors utilized the felony murder statute.
In the Ahmaud Arbery case, the Georgia state prosecutors employed the felony murder statute, and all of the defendants were found guilty of at least one count. Why is it different in Minnesota? Where is the fairness? I know several men in Florida serving lengthy sentences for felony murder convictions. It seems obvious those connected with the death of George Floyd are being prosecuted in a “so we can say we did something” manner.
It is situations such as these that foster doubt and suspicion of the judicial system and the officers of the court. These prosecutors swore an oath to protect the rights of all people in the jurisdictions. We deserve to have prosecutors who will use their best tools no matter who is charged.
George Floyd had a right to live free from being murdered. The rest of us have a right to fair representation by appointed or elected officers of the court. Felony murder laws are on the books for a reason. Prosecutors need to use them.
Robert Lefleur was incarcerated for more than 30 years, represented himself as a pro se litigant, and works as a prison consultant.
