Breaking: https://twitter.com/Reuters/status/1273343649179369475

For those interested in intricacies, this is a head scratcher for students. Felony murder is USUALLY barred in cases when accused of this type of assault. But it seems Georgia has a strange take on "the merger doctrine" that allows this. Georgia!
Explanation? (Sigh)
Here we go:

So... Felony Murder in the killing of Rayshard Brooks. A quick and nervous primer...

Felony murder is a strange criminal law rule. In lay terms, it says, if you kill someone accidentally while committing a felony, we are going to treat you like you MEANT to kill the person.
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The core intuition is you were doing something we have told you, "SERIOUSLY, don't do this. Someone could get killed."

So if someone gets killed, we don't want to hear you say, "But I didn't mean to... who could have seen it coming?"

We did! That's why it's a felony.

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For this reason, felony murder is typically confined to accidental deaths while committing a DANGEROUS felony.

Accidentally run over someone on your way to mail your fraudulent tax returns? No felony murder.

Fake taxes are not dangerous (in this way) and didn't cause it.

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Opponents marshal powerful argument against felony murder. If I robbed a bank but was REALLY careful. I trip, fall and my gun goes off... I committed a lot of crimes. I ought to be punished. But am I a murderer?

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In one famous case, a robber has a jewelry store owner lie on the ground; basically "Be cool and no one gets hurt..." The store owner has a heart attack.

Whatever else, the robber can look us in the eye and say, "If I wanted to kill him, I would have. I am not a murderer."

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I once met a Vietnam vet who was ashamed he came back from the war addicted. Gave a friend a ride to a drug deal. "Simple, quick thing." Something went wrong. Friend shot supplier.

The vet was tried as an accomplice and served decades for murder. Felony murder!

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The Times has one such compelling case here:

https://www.nytimes.com/video/opinion/100000006616407/felony-murder-rule-adnan-khan.html

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On the other hand, proponents point out that in the more typical case, your "mens rea" (guilty mind) aimed at something we have outlawed PRECISELY because we know things can go fatally wrong.

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You didn't think the gun might go off during a robbery? That the abandoned house you torched might have someone in it?

Well we did. And we have to look the father of the victim in the eye and say when you roll the dice with life, it is as good as murder.

Felony Murder!

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BUT NOW IT GETS WEIRD. (I know. I'm sorry. Ask my students. It hurts for them too.)

Let's say you WANTED to kill someone. You cruelly or tragically (depending on counsel's story) break into your ex's home to kill them.

Well that's just murder, RIGHT?

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But you were high or emotionally unstable... In any case, you have reasons RECOGNIZED BY LAW as to why this killing MAY not be premeditated murder. You want to present those reasons to a jury.

Prosecutor thinking...

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Prosecutor: "NOPE. How about if I charge you with reckless discharge of a weapon. That's a felony. Boom! Felony murder!"

"But wait! Then I can't present my LEGAL DEFENSE of my off mental state! (It is not a defense to firing a gun!) You're cheating me of my legal defenses!"

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SO! Most states add a wrinkle. If someone was actually trying to kill another person (or, very roughly, at least was engaged in a seriously assaultive crime) the prosecutor cannot simply find the closest felony and charge felony murder.

This is called THE MERGER DOCTRINE.

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TL/DR? Too bad pal. If I could make it shorter, I would!

THIS BRINGS US TO GARRETT ROLFE'S FELONY MURDER CHARGE FOR KILLING RAYSHARD BROOKS.

Our outrage is precisely because he shot Mr. Brooks twice in the back. He meant to kill.

Good students: "No felony murder right?"

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Wrong son! This is Georgia.

In 1992, Georgia adopted a strange twist called "The Modified Merger Rule."

Because, you know... This was all too simple as it was...

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The "modified merger rule" said instead of prohibiting felony murder in ANY case where the underlying claim is that you assaulted someone (to kill), a prosecutor cannot use the felony murder rule IF it PREVENTS the jury from considering the underlying manslaughter charge.

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If, however, the jury is still presented with the elements for the manslaughter case - like I was high and thus didn't have the mens rea - then the prosecutor may ALSO present the felony murder case. After all, the jury will be able to chose as it sees fit.

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So IN A WAY, the purpose of the merger doctrine is served. The prosecution has not "cheated" by doing an end run around your ability to claim a lessor charge. But the prosecution CAN now use the underlying felony to bootstrap a murder charge without otherwise proving murder.

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TO CONCLUDE,

That is why the felony murder charge of Derek Chauvin would be a close call traditionally. If he didn't intend to kill, then weirdly, you might get a felony murder charge.

But traditionally, Garrett Rolfe COULD NOT have been charged with felony murder.

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You would traditionally have to prove the mental elements for murder. Which would allow him to bring up mens rea elements, so that even if he didn't win on self-defense, he could hope for "imperfect self-defense" and manslaughter.

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Don't get me wrong. I am not rushing to defend either of these cruel and senseless killings.

Prosecutors say Rolfe delared, "I got him," after shooting Brooks and kicked the dying man.

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Still, I should remind that giving more power to the state to charge murders without proving it will probably end up imprisoning more young men of color than anyone else.

But this is why I was so puzzled this is charged as felony murder rather than just MURDER. (Whew.)

/END

P.S. I may never tweet again.