Hey folks,
Yesterday I was interviewed by Megyn Kelly on her Sirius show about the Kim Potter conviction. Enjoy!
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It might be “politically correct” to say that Duante Wright didn’t deserve to die, but I don’t see how anyone can set there and say that with a straight face. Duante Wright deserved to die just like any other violent criminal who is in the act of unlawfully attempting to cause great bodily injury or death to another. Kim Potter did a good deed for society and a great public service by killing Duante Wright before he could accomplish the violent felonies he was attempting in the encounter and the common law provides that she was entitled to an acquittal of the charges with commendation.
In all my years of studying cases where the evidence required a justified or excusable use of force instruction, I have never seen a case with so many prejudicial errors as this one.
The verdicts accepted by the court in this case are mutually exclusive of each other and thus void. A homicide cannot be both lawful act involuntary manslaughter and unlawful act involuntary manslaughter. It is legally impossible. The jury did not find that the prosecution had proven both counts beyond a reasonable doubt, the jury, as evidenced by the mutually exclusive verdicts rendered, found that the prosecution had not proven either of the counts beyond a reasonable doubt.
It was plain prejudicial error for the court to accept the mutually exclusive jury verdicts and disperse the jury, and that error alone requires that the verdicts be set aside.
Neither Potter nor Chauvin will be adjudicated for the lessor charges; see Minn. Stat. 609.04.
That statute only applies to lesser included offenses. Lawful act involuntary manslaughter isn’t a lesser included of unlawful act involuntary manslaughter because lawful act involuntary manslaughter requires a different proof than unlawful act involuntary manslaughter requires. Lawful act involuntary manslaughter and unlawful act involuntary manslaughter are mutually exclusive offenses because they each require different proofs. One requires proof of a lawful act done in a reckless manner that is the proximate cause of an unlawful homicide and the other requires proof of an unlawful act (misdemeanor offense) that is the proximate cause of death. There is a big difference between a lesser included offense and mutually exclusive offenses.
“There is no question that third-degree murder, first-degree manslaughter, and second-degree manslaughter are all lesser-included offenses of first-degree murder.”
Bellcourt v. State, 390 N.W.2d 269 (Minn. 1986)
Important to distinguish between voluntary and involuntary manslaughter in this context. Voluntary manslaughter is generally a lesser included of murder, but involuntary is generally not.
“There is no question that third-degree murder, first-degree manslaughter, and second-degree manslaughter are all lesser-included offenses of first-degree murder.”
Bellcourt v. State, 390 N.W.2d 269 (Minn. 1986)”
That is a dictum statement of the Court, it is not law, and it is plain error.
“There is no question that third-degree murder, first-degree manslaughter, and second-degree manslaughter are all lesser-included offenses of first-degree murder.”
Bellcourt v. State, 390 N.W.2d 269 (Minn. 1986)”
Lesser included offenses are offenses which do not have as an essential element of the offense any essential element that is not an essential element of the greater offense. Third degree murder under Minnesota law has an essential element that first and second degree murder does not have, therefore it is not a lesser included offense of first or second degree murder in Minnesota although it is a lesser degree of murder than first or second degree murder under Minnesota law.
First degree manslaughter under Minnesota law, whether voluntary or involuntary, has as essential elements of the offenses essential elements that first, second, or third degree murder does not have, therefore first degree manslaughter is not a lesser included offense of first, second, or third degree murder although it is a lesser degree of felony homicide.
Second degree manslaughter under Minnesota law, whether voluntary or involuntary, has as essential elements of the offenses that first, second, and third degree murder does not have, therefore second degree manslaughter is not a lesser included offense of first, second, or third degree murder although it is a lesser degree of felony homicide.
In the Potter case both counts have as essential elements of the offenses elements that the other offense does not have, and those essential elements are mutually exclusive of each other. Finding Potter guilty of both offenses is prima facie evidence that the verdict is void. Chu screwed up big time when she failed to instruct the jury that they could not convict Potter on both counts. Then she screwed up big time again when she accepted the mutually exclusive verdicts and dispersed the jury. If the defense appeals the error both verdicts will be set aside.
It’s not rocket science, it is just plain old common sense and Chu doesn’t have it.
I am not familiar with Minnesota law but the judges in New Mexico get the same result:
“The real question is whether manslaughter is an offense the commission of which is “necessarily included” in the murder with which appellant was charged, within the meaning of the proviso. It is readily to be perceived that the two offenses are distinct in the sense that manslaughter was not committed in committing the higher offense of murder. If murder was committed, there was no manslaughter. But that is not the point. The lesser need not be committed in the perpetration of the greater. The commission of the lesser need only be “necessarily included” in the offense charged. The charge that there was an unlawful killing from malice aforethought, which constitutes murder, embraces the several elements, the killing, the unlawfulness of it, and the malice of it. On each element the accused is put to trial. As to any of them the proof may fail. If there was no killing or if it was not unlawful, there is no guilt. If there was a killing and it was unlawful but without malice, there is guilt of manslaughter. In that sense, murder as defined in law necessarily includes manslaughter as defined in law.”
STATE V. BURRUS, 1934-NMSC-036, 38 N.M. 462, 35 P.2d 285 (S. Ct. 1934)
“This court held as long ago as State v. Burrus, supra, decided in 1934, that manslaughter is one of the four kinds of homicide, and that it is included within a charge of murder. It was not stated there if voluntary only or involuntary manslaughter was referred to, but our statute, 40-24-7, supra, defining manslaughter, has remained unchanged since 1907, and it is reasonable to assume that both were included in the broad term “manslaughter.”
STATE V. MCFALL, 1960-NMSC-084, 67 N.M. 260, 354 P.2d 547 (S. Ct. 1960)
The main reason for lesser charges is failure of proof. In Potter’s case the First-Degree Manslaughter is predicated on the misdemeanor negligent handling of firearms. The Prosecutor could have failed to prove the misdemeanor under a variety of legal defenses – say for instance that the jury believed that the handling of the firearm was lawfully justified because she was a police officer. In that event the Jury could then find that even if she acted lawfully in handling the firearm, she handled the firearm with criminal negligence (appears to be “Culpable Negligence” in Minnesota) by failing to handle the gun in accordance with the standard for trained and experienced police officers and convict her of Second-Degree Manslaughter. They could also find that she committed the predicate misdemeanor and she acted with criminal negligence and convict her of both or determine there was neither intent nor criminal negligence and acquit her. In simplified form:
First-Degree Manslaughter
minus intent (“consciously or intentionally” via the predicate misdemeanor)
equals Second-Degree Manslaughter
Second-Degree Manslaughter
minus “culpable negligence” (I assume this is the same as criminal negligence in New Mexico)
equals acquittal
Since there was only one homicide, the court should not adjudicate on the lesser charge, and she should be sentenced under the First-Degree Manslaughter Charge. The same should happen in Derek Chauvin’s case.
“This court held as long ago as State v. Burrus, supra, decided in 1934, that manslaughter is one of the four kinds of homicide, and that it is included within a charge of murder.” This is an incorrect statement of the law.
This is a much later New Mexico Supreme Court case and a correct statement of the law, not just in New Mexico, but in every state: “Manslaughter not “necessarily included” in murder. — Under appropriate circumstances, where there is evidence that the defendant acted as a result of sufficient provocation, a charge of manslaughter could properly be said to be included in a charge of murder, and, accordingly, it would not be error to submit N.M.U.J.I. Crim. 2.20 (see UJI 14-220 NMRA) to the jury; however, it cannot seriously be maintained that manslaughter is invariably “necessarily included” in murder, since different kinds of proof are required to establish the distinct offenses.
You did not provide a citation, but I assume you mean Smith v. State, 1976-NMSC-085, 89 N.M. 770, 558 P.2d 39 (S. Ct. 1976). First, Smith does not say that manslaughter is not a lesser included offense of murder, it says that Smith’s involuntary manslaughter conviction is not supported by the evidence. In fact, it specifically refers to the conviction as a lesser-included offense:
“Chapter 199, § 1, [1937] N.M. Laws 522, is invalid to the extent that it authorized a conviction for a LESSOR-INCLUDED OFFENSE when no evidence is contained in the record to prove the essentials of the elements of the offense of which the defendant stands convicted.” (Capitalized emphasis added)
Smith v. State, 1976-NMSC-085, 89 N.M. 770, 558 P.2d 39 (S. Ct. 1976)
Smith simply states the obvious. That a lesser charge must be warranted by the evidence:
“When we affirmed the conviction for voluntary manslaughter in the Burrus case, we did not have the same problem with the evidence which confronts us in the instant case. In Burrus, there was an abundance of evidence of provocation which is entirely lacking in this case.”
Smith v. State, 1976-NMSC-085, 89 N.M. 770, 558 P.2d 39 (S. Ct. 1976)
An incisive summary of Smith comes from an unpublished Court of Appeals ruling in State v. Maes, No. A-1-CA-34743 (N.M. Ct. App. Apr. 4, 2019):
“Although the Smith Court reversed the defendant’s conviction for voluntary manslaughter, it did so on the ground that the evidence did not support the conviction. The Smith holding therefore did not negate the general proposition expressed in Burrus, Omar-Muhammad, La Boon, or McFall. Instead, it “simply h[eld] there must be evidence of the crime to sustain the conviction.”
Smith does not reverse Burrus; it reversed the New Mexico Court of Appeals decision on Smith’s underlying appeal. In fact, the New Mexico Supreme Court cites Burrus and McFall as good law in State v. Omar-Muhammad, 1987-NMSC-043, 105 N.M. 788, 737 P.2d 1165 (S. Ct. 1987):
“Nevertheless, we long ago said that “‘[n]ecessarily included’ fairly, though perhaps not best, expresses the relationship between [different degrees of homicide].” State v. Burrus, 38 N.M. 462, 471, 35 P.2d 285, 291 (1934) (emphasis added) …
… Like first degree murder, second degree murder, voluntary manslaughter, and involuntary manslaughter, see State v. McFall, 67 N.M. 260, 265, 354 P.2d 547, 550 (1960), we believe that vehicular homicide under Section 66-8-101 is a degree of the generic offense of felonious homicide…
… In conclusion, we hold that the district court erred in refusing to instruct the jury on, first, vehicular homicide by reckless driving and, second, vehicular homicide while under the influence of drugs, because each is a lesser degree of felonious homicide and a lesser included offense of the crime with which defendant was charged, first degree depraved mind murder, and because the evidence could have supported a conviction for either vehicular homicide offense. Defendant’s conviction therefore must be reversed.”
Omar-Muhammad post-dates Smith by over 10 years. The law is so well settled that the few cases to be found tend to be either memorandum decisions like Maes or novel issues as presented in Omar-Muhammad. Probably the only reason the Supreme Court addressed Omar-Muhammad in such detail is that the issue it was a case of first impression based on a statutory class of homicide added to the common law. The question was whether two types of vehicular homicide were a lesser included offense of first-degree depraved mind murder. It is no surprise, given the law as set forth in Burrus and McFall, that Omar-Muhammad found that both vehicular homicide by reckless driving and vehicular homicide while under the influence of drugs are lesser included offenses of the crime of first-degree depraved mind murder.
Also, I got to thinking that Chauvin’s Sentencing Order should be out by now, so I googled it and came up with this link:
https://mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12646/MCRO_27-CR-20-12646_Sentencing-Order_2021-06-25_20210625145755.pdf
Note the order states “Pursuant to Minn. Stat. § 609.04, Counts II and III remain unadjudicated as they are lesser offenses of Count I.”
Potter should get the same result.
I guess I wouldn’t make a very good defense attorney, because I can’t seem to communicate even the simplest clearly established well settled principles of law to other intelligent people. Not a problem though, because I am not a defense attorney.
One more attempt to communicate. In law, words matter. Always pay attention to the exact words. “Pursuant to Minn. Stat. § 609.04, Counts II and III remain unadjudicated as they are lesser offenses of Count 1.” Pay attention to the last four words here. It does not say they are lesser ‘INCLUDED” offenses of Count 1. It says they are “lesser offenses of Count 1.” Also, pay attention to the words here: “however, it cannot seriously be maintained that manslaughter is invariably “necessarily included” in murder, since different kinds of proof are required to establish the distinct [DISTINCT] offenses.” Distinct offenses means the offenses have different essential elements and neither offense is a lesser included offense of the other offense, although one offense may be a lesser degree offense of homicide than the other offense is.
“A lesser-included offense is necessarily included if it is impossible to commit the latter without also committing the former. State v. Roden, 384 N.W.2d 456, 457 (Minn.1986). In determining whether an offense is a lesser-included offense, the court looks at the elements of the offense, not the facts of the particular case.” Bellcourt v. State 390 N.W.2d 269 (1986)
Convictions of a charged offense and a lesser included offense are not mutually exclusive, but convictions of a charged offense and a lesser offense that is not a lesser included offense are generally, if not always, mutually exclusive. When a jury returns a finding that the prosecution has proven beyond a reasonable doubt that the defendant killed the homicide victim in “cold blood” and also returns a finding that the prosecution has proven beyond a reasonable doubt that the defendant killed the homicide in “hot blood,” you know, as a matter of law and a matter of good sense, the prosecution has not proven the defendant guilty of either offense beyond a reasonable doubt. You know the jury, as instructed, was incompetent to render a verdict in the case and both verdicts are void as a matter of law. The Court should refuse to accept the verdicts, reinstruct the jury and send them back to the jury room to decide the case. Accepting the verdict and dispersing the jury is prejudicial error and the jury verdicts in the case are and will remain void forever.
Maybe it’s me that isn’t being clear. Unlike Andrew I don’t have a gift of clarity. Andrew can take the law and turn it into easily understandable English. Maybe he will take an interest in this question and make it more understandable.
I can be dense sometimes, but I do think I finally see what you are saying. I don’t think what you are arguing has anything to do with the legal definition of lesser included offenses. It seems that you are really referring to inconsistent jury verdicts. First, understand the treatment of inconsistent jury verdicts varies widely state by state. A good place to start is Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932). The Supreme Court basically concluded that consistency in verdicts was not required (“Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment”). Doesn’t seem right, does it? But I will try to explain why later. Some states follow this line of reasoning, others do not. My guess is that in practice most appeals are handled directly or indirectly by a sufficiency of the evidence review. The Smith case in New Mexico we discussed earlier is like that. The court simply determined there was zero evidence of provocation and since voluntary manslaughter in New Mexico requires provocation they reversed the conviction. If there is not sufficient evidence for each element of a charge, you should not get a jury instruction and the jury will not consider that defense. If they do, the appellate court should reverse like they did in Smith.
Think about how a jury verdict can be inconsistent. It could be logically inconsistent, or legally inconsistent or both. Say a jury convicts me of both First-Degree Murder and Second-Degree Murder in New Mexico. Just like you argued, in my mind that verdict would be logically inconsistent. If I deliberately intended to kill someone, how can I simultaneously not deliberately intend to kill them – it is totally irrational or in your words mutually exclusive. On, the other hand these verdicts can be legally consistent. Look up the jury instructions for these offenses. The First-Degree charge requires the prosecutor to prove I had the deliberate intention to kill beyond a reasonable doubt. The Second-Degree charge requires the prosecutor prove I knew my acts created a strong probability of death beyond a reasonable doubt. Mutually exclusive, right? The tricky part is that the jury instruction for Second-Degree Murder does not require the prosecutor to disprove deliberate intention beyond a reasonable doubt. Since deliberate intention is not an element at all in Second-Degree Murder, the prosecutor could prove all the elements required for Second-Degree Murder and all the elements required for First-Degree Murder and a jury evaluating each charge individually could find me legally guilty of both.
An easy way to visualize this is to think of a criminal and a civil trial. Say a jury finds me criminally negligent and convicts me of involuntary manslaughter. Now you take me to civil court and sue me on the family’s behalf for civil damages. But wait, criminal negligence and civil negligence are mutually exclusive – I can’t be both at the same time. Yet I think you would believe it irrational for the civil jury to come back and say “Sorry, no damages. He was criminally negligent not civilly negligent.” In fact, what you would expect is the jury to come back and say not only did you meet the bar to earn damages, but you also exceed the bar – he was not just negligent, he was criminally negligent.
New Mexico recently released jury instructions that should eliminate this problem. Google NM UJI 14-6002A and 14-6002B. They require that the jury step through the offense from highest to lowest and stop when they reach a guilty verdict. Also, the elements of New Mexico jury instructions are patterned to help avoid this issue. Second-Degree Murder, for example, has an element that the prosecution must prove the defendant did not act under provocation beyond a reasonable doubt.
Now apply this to the Potter case. Second-Degree Manslaughter does not have an element that the prosecutor must disprove intent (conscious or intentional via the predicate misdemeanor) beyond a reasonable doubt. First-Degree Manslaughter does not have an element that the prosecutor must disprove culpable negligence. So, you can see how a jury, evaluating each charge independently, could convict on both. That is why I say a lot of states probably just use sufficiency of the evidence in review on these cases. If you think about it, if the appellate court finds zero evidence of culpable negligence or zero evidence of intent it would reverse either or both charges.
If you read the two New Mexico jury instructions above, I think you would conclude it seems impossible Potter would have been convicted of both counts in New Mexico. Without spending a lot of time studying procedure, pattern jury instructions and case law in Minnesota I cannot tell you if the result in Potter was correct. What I can say is based on a limited review of case law, and the fact that two district court judges followed the same charging instructions without (to my knowledge) objection by the attorneys involved, I would assume these types of jury verdicts are common in Minnesota and are resolved under the statute for convictions under a lesser offense (Minn. Stat. § 609.04). Otherwise, why have the statute? Remember the law in Minnesota is not common law, or even conclusively statutory law, it is whatever the Minnesota Supreme Court says it is. The New Mexico Supreme Court decided to try to eliminate this problem, but the judges in Minnesota must follow the procedures set forth by the Minnesota Supreme Court.
Also, I am in no way saying that the jury in Potter made a correct finding of fact or that the evidence was sufficient for both charges. The appellate court will review and if the evidence was insufficient, they will in theory reverse one or both convictions; in practice, however, such reversals are rare since usually there is some evidence the jury could find the necessary elements on.
I hope that helps, or at least doesn’t hurt
I think you are being clear with what you say, you’re just no grasping the difference between a lesser included offense of the offense charged and a lesser offense of the offense charged. A lesser included offense must be proven before the charged offense can be proven and that is because the lesser included offense is proven with one or more less essential elements than the charged offense and no necessity of proving any essential elements of the offense that are not essential elements of the charged offense. On the other hand, a lesser offense like second degree murder is a lesser degree of criminal homicide than first degree murder, but it is not a lesser included offense of first degree murder if it requires proof of an essential element that first degree murder does not require proof of.
For instance, larceny is a lesser included offense of robbery because robbery requires proof of all the essential elements of larceny plus one additional proof of the essential element of taking by force or threatened use of force. And robbery is a lesser included offense of armed robbery because armed robbery requires proof of all the essential elements of robbery plus one additional essential element of use of a weapon.
Now look a voluntary manslaughter. Voluntary manslaughter requires proof of all the essential elements of murder other than malice aforethought, but it is not a lesser included offense of murder because voluntary manslaughter requires proof of two additional elements that murder does not require proof of for a conviction. Voluntary manslaughter requires proof of “hot blood” and proof of “adequate cause” for hot blood. Murder, on the other hand, is generally committed in cold blood, although it may also be committed in hot blood that does not arise from “adequate cause.” Therefore, voluntary manslaughter is a lesser offense of felony homicide, but not a lesser included offense of murder.
When you are looking at previously decided court cases you have to be very careful you understand what the issues were that were presented in the case and are being decided.
It is very easy to take a court ruling out of context. For instance, the Missouri Supreme Court in an 1896 held that there was “a duty to retreat” before using force in self defense in Missouri and then six years later the very same court, with the very same justice writing the opinion, held that in Missouri there was no duty to retreat before using force in self defense and that a man had the right to stand his ground and kill his assailant in self defense. Both opinions are still the law in Missouri, and that is because they were both correct statements of the law in Missouri as it was in force an effect at the time and still is in force an effect. You just have to study the cases and see what the issues being determined were. A lot of people have cited the Dewitt case for the proposition that there is a duty to retreat in Missouri and no right to stand your ground, but it doesn’t say that at all. The Dewitt case says there is a duty to retreat in certain circumstances and those circumstances existed in the Dewitt case, the defendant was a provoker or aggressor, I can’t remember which (makes no difference), and that is what gives rise to the conditional or unconditional duty to retreat (conditional for the provoker and unconditional for the aggressor).
It may very well be that the term “inconsistent verdicts” has a legal meaning altogether different than the term “mutually exclusive verdicts.” Mutually exclusive verdicts are void and I believe that is the correct term for the verdicts in the Potter case.
A little off point here, but are you from New Mexico, or have you just been researching the law applicable in the Rust shooting? What I found interesting about the New Mexico homicide statutes is they pretty well correctly codify the English law of homicide without all that non-sense of those liberal northern lawyers from Penn and NY that wrote the Model Penal Code in an attempt to change the law of homicide in America.
Under NM law Alex Baldwin is quite obviously guilty of involuntary manslaughter, at the very least, and quite possibly could be convicted of murder.
I just did a little quick research, and it appears the term “inconsistent verdicts” applies to inconsistent guilty and not guilty verdicts; and the term mutually exclusive verdicts applies to inconsistent guilty verdicts. Inconsistent guilty and not guilty verdicts leaves you wondering what the jury was doing in rendering inconsistent verdicts (were they merely exercising their inherent power of jury nullification, or what?). On the other hand, mutually exclusive verdicts don’t leave you wondering what the jury was doing in rendering legally and logically inconsistent verdicts, you know what the jury was doing and that was the jury was unlawfully convicting a defendant of both counts when he had not been proven guilty of either count beyond a reasonable doubt—You know the jury was functioning as a lynch mob rather than a fair and impartial jury. And that is why mutually exclusive verdicts are void.
Chu made so many prejudicial errors in the Potter case that a good lawyer could write a book about them. One of them I haven’t mentioned is the fact that the predicate misdemeanor for the charged offense of first degree manslaughter under section 609.20(2) in this case is in fact a misdemeanor offense that cannot serve as a predicate misdemeanor for first degree manslaughter under section 609.20(2), as a matter of law. If a person commits a misdemeanor offense under section 609.66 subdivision 1. (1) (reckless handling or use of a firearm) and a homicide results, the category of the homicide offense is going to be murder—not manslaughter. The intent to kill, the essential element of malice aforethought necessary to make the offense murder, is expressed by the circumstances of the act, the act of recklessly handling or using a firearm, and by the killing itself.
I am from New Mexico, it’s a great place to live and sunny most of the time. I’m waiting for it to warm up so I can hike the Sandias. I agree with you that New Mexico law is well formulated. Here neither Potter nor Baldwin could have been convicted of voluntary manslaughter. Voluntary manslaughter in New Mexico is basically a mitigated second-degree murder and does not include some form of elevated involuntary manslaughter. She could very well have been convicted on involuntary manslaughter depending on the finding of fact by the jury. Same with Baldwin, the law supports the conviction, just a matter of providing sufficient evidence of the elements.
As for Potter, it seems we are just discussing semantics, not the law.
Since I’m not a member of the Minnesota bar I can’t really give an informed opinion as to if Potter’s conviction will be reversed because the offenses are mutually exclusive, but I doubt it. It seems they don’t have exactly voluntary and involuntary manslaughter, but some mishmash that allows predicate misdemeanors to convict for the higher level or manslaughter. Hopefully they will reverse it on some other grounds, specifically the many issues Andrew addressed in his analysis. We will just have to wait for the appeal and see how it turns out.
Also, there are cases in New Mexico that reversed convictions because they were “mutually exclusive” but I’m out of the office and not where I could look them up for you. Try to google and I’m sure you can find them.
What state are you in? I’d been interested in browsing Lexis for some cases that reverse convictions on this basis. They might come in handy someday.
Missouri, where it was 75 degrees one day last week and 10 degrees two days later.
Minnesota’s codification of the English law of manslaughter is definitely a little weird. Under the English law manslaughter was of two kinds, voluntary and involuntary, with voluntary manslaughter being of one kind only—an intentional killing in the heat of passion, and involuntary manslaughter being of two distinct kinds—the first being an unintentional/accidental killing of another by a lawful act done without malice and without due caution and circumspection and the second being an unintentional/accidental killing done without malice during the commission of an unlawful act not amounting to felony. Although there were three different ways to commit felony manslaughter under the English law, there was only one degree of manslaughter and it was a capital offense punished in the same manner as murder, which also only had one degree of the offense although the offense could be committed in thousands of different ways. By 1776 manslaughter in England did have the benefit of clergy though, while murder did not. I don’t believe manslaughter in the English Colonies in America ever had benefit of clergy though.
Minnesota has both voluntary manslaughter, certain specific types of unlawful act/constructive act involuntary manslaughter, and a specific type of the defense of duress codified under section 609.20 as first degree manslaughter. They then also have other specific types of unlawful act/constructive act involuntary manslaughter and other specific types of lawful act involuntary manslaughter codified as second degree manslaughter under section 609.205. Not a very clear codification of the law of England that the Minnesota Legislature adopted as the law of the land in Minnesota.
What makes the Potter verdict unconstitutional and void is that Potter was denied her constitutional right not to be convicted of a charged criminal offense without the charged criminal offense having been proven to a competent unbiased jury of her peers beyond a reasonable doubt. The jury obviously did not logically find that the prosecution had proven that Potter’s act that killed Wright was both lawful and unlawful beyond a reasonable doubt. The verdict itself is proof beyond a reasonable doubt that the prosecution did not meet its burden of proving either of the charged offenses beyond a reasonable doubt and that makes the verdict void.
Mutually exclusive verdicts is just one prejudicial error that can be raised on appeal, there were a number of them in the Potter case and they all should be raised on appeal to the appeals court or by a Writ of Habeas Corpus in the Federal District Court because they all have to do with Federal Constitutional rights.
Thanks for the info re: DA misstating the law on Manslaughter and that the Defense objected. I did not watch trial, did not know Defense had objected, so that issue should be preserved on appeal and would expect trial court found in error. Problem, Kim Potter will be in jail for years until appeal heard and probably stay in jail until re trial. Would hope get out pending re trial.