Two months after a pawn shop was looted and burned in the Minneapolis, a charred body with “thermal injuries” was found in the ruins. Montez Terrill Lee, 25, was videotaped torching the building and later celebrating the arson. The question is whether his case may now be the first felony-murder charge to come out of the protests. If the victim is confirmed as dying as a result of the arson allegedly set by Lee, it could be the first such case with the potential of the death penalty.
ATF investigators reportedly identified Lee from a video sent by an anonymous source showing a masked man pouring liquid from a metal container throughout the pawn shop. A second video shows Lee standing in front of the burning pawn shop saying “We’re going to burn this place down.”
Now two months later, police spokesman John Elder told the Star Tribune declared that “The body appears to have suffered thermal injury and we do have somebody charged with setting fire to that place.”
The question is whether the discovered might lead the Justice Department to bring the first felony-murder charge linked to the protests and rioting.
Lee is already charged with federal arson, a crime that is listed as a predicate under the felony murder provision in 18 U.S.C. 1111(a):
(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.
Many states require that the predicate felony (here arson) must be separate from the death. The federal courts have reviewed Section 1111 and affirmed that intent to cause a death is not required:
“(t)he felony-murder rule provides that an unintended death resulting from the commission or attempted commission of certain felonies is murder in the first degree. The doctrine circumvents the normal mens rea requirements of first-degree murder and requires only an intent to commit the underlying felony.” United States v. Nichols, 169 F.3d 1255, 1272 (10th Cir.), cert. denied, 528 U.S. 934 (1999). Accordingly, the felony murder rule ‘eliminates the need for a finding of premeditation.’”
Thus, as noted by the Tenth Circuit in United States v. Pearson, 159 F.3d 480, 485 (10th Cir. 1998):
“There is an intended felony and an unintended homicide. The malice which plays a part in the commission of the felony is transferred by the law to the homicide. As a result of the fictional transfer, the homicide is deemed committed with malice; and a homicide with malice is, by definition, common-law murder.”
The police report clearly indicates that the authorities believe that this victim died as a result of the arson.
If he is now hit with a superseding indictment for felony murder, Lee could face the death penalty. The Supreme Court in Enmund v. Florida, 458 U. S. 782 (1982), reversed the death sentence of a defendant convicted under Florida’s felony murder rule who was a getaway man. The Court found a broad societal consensus that the death penalty was disproportional to the crime of robbery-felony murder “in these circumstances.” Id. at 458 U. S. 788. However, the Court ruled five years later in Tison v. Arizona, 481 U.S. 137 (1987), that felony murder was a lawful charge if the defendant was a major participant in the underlying felony and acted with “reckless indifference to human life.” (Tison v. Arizona, 481 U.S. 137 (1987).
In this case, Lee could be charged with such reckless indifference in torching the pawn shop and then celebrating as it burned.
The defense could challenge the cause of death. Moreover, the arson occurred at night when it could be assumed that no one was present in the store. However, again, intent is not an element to the second offense. Moreover, the victim may have come into the store later to try to put out the flames. Yet, the death could still be caused by the arson.
Much will depend on the investigation and the autopsy. If the thermal injuries were the cause of death, prosecutors would likely explore the superseding indictment on felony murder.