There has been much discussion since the verdicts were read yesterday in the Derek Chauvin trial how he could be found guilty of three counts when there was only a single act. While I can’t speak competently about Minnesota law, here in Indiana this occurs with some frequency. Prosecutors in Indiana are given wide discretion in deciding what charges to bring against a defendant. And they are allowed to pursue alternative theories of liability.

In most jurisdictions, including Indiana, there are degrees of liability based on the circumstances surrounding a killing. Levels of intent affect degrees of culpability assigned to each felony. For example, an intentional murder is assigned a higher, more serious level of felony than a homicide caused by a reckless act. The same appears to be true in Minnesota.

Looking at Chauvin’s charges, we find the following: second-degree murder - an unintentional killing while the defendant was committing a felony; third-degree murder - an unintentional killing that occurred while the defendant was committing an “imminently dangerous” act and evidencing a depraved mind; and second-degree manslaughter - an unintentional killing that occurred due to the defendant consciously taking an unreasonable risk. Clearly, the second-degree murder offense is the most serious level of intent; to prove its case, the State had to show that Chauvin intentionally committed a felony and Floyd died while the felony was being committed. The other two offenses do not require proof of commission of a felony.

The prosecutors in his case left the decision up to the jury to decide what degree of intent Chauvin displayed during his encounter with Floyd. By finding Chauvin guilty of second-degree murder, the offense that displayed the highest degree of culpability, the jury obviously had to find that Chauvin was also guilty of possessing the lesser degrees of intent as well. In other words, if you acted intentionally in committing the felony, you also acted recklessly and negligently in committing that felony.

So will Chauvin being punished for all three offenses? Again, I do not know Minnesota law. But in Indiana, the answer would be no. If Chauvin had been prosecuted in Indiana and the jury had returned these three verdicts, before sentencing the judge would decide whether punishing Chauvin for the three offenses violated the law prohibiting double jeopardy. Criminal defendants cannot be punished for both an “offense” and an “included offense.”

An offense is an “included offense” of another where the offense differs from the other only because it includes a lesser degree of culpability. Thus, the two offenses with the lesser degree of culpability (in Chauvin’s case, third-degree murder and second-degree manslaughter) would be “included offenses” of second-degree murder. An Indiana judge would not enter a formal conviction for either of those “included offenses,” because to do so would be violating the defendant’s right to protection from double jeopardy (i.e., being punished twice for the same offense).

One other interesting aspect to this case: it isn’t over. Three other officers at the scene that day with Chauvin are still awaiting trial. While it seems likely one or more of them will plead guilty now that they know how at least one jury has decided the issues, what if they decide to stand trial? Will the cause of Floyd’s death again be in dispute? It would certainly seem to be a possibility.

Double jeopardy law includes the doctrine of collateral estoppel, which essentially provides that when an issue of ultimate fact has already been decided, that issue cannot again be litigated. But that is true only between the same parties. In the case of Chauvin’s fellow officers, it would seem they are free to argue something other than Chauvin’s actions caused Floyd’s death. A different jury would then get to decide that issue. Although there is a wrinkle: the second jury would undoubtedly know about the first jury’s verdicts. That is rare.