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Sam Joyce Barrister Frank Moran Chambers

LEGAL Minnesota murder law a disservice to Justine?

Minnesota police officer Mohammed Noor shot and killed Justine Ruszczyk on July 15, 2017. He was charged with second-degree intentional murder, third-degree depraved-mind murder and seconddegree manslaughter.

A jury sitting in Minnesota acquitted Noor of second-degree intentional murder but convicted him of thirddegree depraved-mind murder and second-degree manslaughter.

Noor appealed his conviction of third-degree depraved-mind murder to the Supreme Court of Minnesota. The court allowed his appeal, quashed that conviction, and remanded him back to the trial court to be resentenced for the second-degree manslaughter charge only.

The court made clear that the issue in the appeal was not whether Noor was criminally responsible for the death of Justine Ruszczyk – he was – as he did not appeal his conviction for second-degree manslaughter. The question before the court was a technical point of law about the elements of third-degree depravedmind murder, and whether in law Noor could be guilty of that offence.

The law of murder in Minnesota is unusual compared to Australian and English law. In some respects, it is also a little unusual in American law. While the US law is a cousin of Australian law – both Australian and American law descending from the English common law – over the centuries US law could accurately be described as a third cousin twice removed. It was the elements – or ingredients – of what constitutes third-degree depraved-mind murder that were the subject of the Supreme Court’s decision and Noor’s appeal.

In Australia, there is one offence of homicide: murder and manslaughter are really two different species of the one offence. Murder requires proof of an intention to kill or to do grievous bodily harm or of being reckless as to those results. If the act that causes a death is not accompanied by an intention to do, or recklessness as to, either of those results there is usually no murder.

Manslaughter meanwhile is a catchall applicable when a person does an act that causes the death of a person but there is either no intent or recklessness as to the result, or there is some part justification or excuse for the unlawful killing.

It might apply where a person does an act that causes a death, with intent or recklessness, but the act was done in self-defence and the force that was used was excessive so not completely justified. We call that voluntary manslaughter because the act is done with a state of mind that considers the result.

But manslaughter might also apply where a person does an unlawful and dangerous act like stabbing a person, without an intent or recklessness as to the result, but that act kills the deceased. Or it can apply where someone does an act that kills the deceased, without intent or recklessness, but the act is so negligent that it is criminal, and the person should be criminally responsible for the death. We call that involuntary manslaughter.

For historical reasons, manslaughter is always available to a jury as an alternative verdict to murder as a merciful verdict. That was because, at common law, murder was the first offence to which mandatory sentencing was applied: the judge had no choice but to impose the death penalty. So, the common law created a work-around for juries who felt sorry for the accused and allowed them to convict of manslaughter instead which was not punishable by death.

In most states in Australia, you won’t find the ingredients for murder and manslaughter in the statute books. They are pure common law offences. That (and for other historical reasons) means in Australia there is no such thing as “aggravated” murder or manslaughter.

A drug dealer causing the death of a police officer, or a domestic violence perpetrator causing a death of a victim during a DV incident is, in our law, treated the same as when a drug dealer causes the death of another one.

In America it is quite different.

American criminal law is code-based, which means you find it in the statutes. By and large, the criminal law is statebased and the law varies wildly depending on which state you’re in. It’s hard to make generalizations for that reason.

In about 1794, in Pennsylvania, murder was first graded into subcategories – first and second degrees. That was for the same reason as the common law in England and Australia allowed juries to convict of manslaughter instead of murder: firstdegree murder carried the death penalty, second-degree murder didn’t. Eventually all the American states followed suit.

First-degree murder is murder where there is an intention to kill, and there is some feature of the murder that is particularly serious and an element of premeditation or pre-planning.