The line between reckless driving and murder is getting thinner in Minnesota

One of the most surprising outcomes of two car crashes that killed seven Minnesotans is that the drivers, Derrick John Thompson and Steven Frane Bailey, were both found guilty of third-degree murder.

That is rare, in a state where more than 400 people are killed by cars each year.

In a one-month span, Bailey pleaded guilty to crashing into a restaurant patio, killing two people, and Thompson was found guilty by a jury of killing five young Somali women after driving at speeds of nearly 100 mph. Before that, there had been four convictions for third-degree murder involving a car crash in Hennepin County in the past 10 years, according to research provided by the Fourth Judicial District.

What crimes fit into third-degree murder has been under question in Minnesota courts since the 1800s, but a change in state jury instructions has thinned the line between third-degree murder and reckless driving.

Prosecutors have long treated third-degree murder as a “garbage pail” for deaths caused by someone who didn’t specifically target the person or people who died, said Stephen Foertsch, a defense attorney and partner at Bruno Law.

Drug overdoses often fall into that space; so do car crashes.

“They see some kind of conduct that feels more serious than the penalty allowed by law under those vehicle statutes,” Foertsch said. “They try to put a square peg in a round hole and call it murder three.”

Convictions for third-degree murder carry a maximum 25-year sentence; sentences for criminal vehicular homicide are capped at 10 years.

As the state looks to get more aggressive in punishing dangerous drivers, the Legislature passed stiffer penalties for repeat DWI offenders after Bailey’s guilty plea, and lawyers have an eye on the impact of Thompson’s conviction.

Hennepin County Attorney Mary Moriarty said proving criminal vehicular homicide is much easier than third-degree murder.

“If our team, our people who have those cases, want to seek third-degree murder, we have to think about a lot of things,” Moriarty said. “It is a higher charge. It carries a higher penalty. It’s harder for us to prove.”

In the Thompson case, her prosecutors proved a jury will convict someone of murder because they were driving chaotically.

In 2022, the definition of third-degree murder was changed in Minnesota’s Jury Instruction Guide (JIG).

That decision was made by the Minnesota District Judges Association Committee on Criminal Jury Instruction Guides. Hennepin District Judge Hilary Caligiuri, the current chair of the committee, declined an interview request.

The change the committee made stemmed from two 2021 state Supreme Court opinions. They put the JIG slightly out of step with the Minnesota legal statute for third-degree murder, which reads that a person is guilty of the crime when they kill someone through “an act eminently dangerous to others and evincing a depraved mind, without regard for human life.”

The JIG removed the phrase “and evincing a depraved mind.”

One of the opinions from 2021 was the Supreme Court overturning the third-degree murder conviction of former Minneapolis police officer Mohamed Noor for shooting and killing Justine Ruszczyk Damond when responding to her 911 call in 2017.

Defense attorney Tom Plunkett was part of Noor’s legal team.

He said the removal of “evincing a depraved mind” from the JIG was problematic, no matter the Supreme Court opinions.

“It’s a dilution. The law shouldn’t be diluted. It should be pure,” Plunkett said. “Either put it in there or change the law.”

The other case stemmed from the third-degree murder conviction of Eric Coleman, a Chisago City man who was driving drunk on a snowmobile and killed 8-year-old Alan Geisenkoetter, who was with his family setting up an ice fishing house. Coleman appealed his conviction, arguing that jury instructions given at his trial were faulty.

The court upheld Coleman’s conviction but clarified the language that should be used for jury instructions in third-degree murder cases. “Evincing a depraved mind” was not part of the instruction.

The following year, the JIG was updated.

This month, the state Supreme Court overturned another third-degree murder conviction and said the decision in Coleman should be considered “a new rule of law” to stop ongoing confusion.

The jury in Thompson’s trial was told they had to decide whether he caused the deaths of the five young women; whether his behavior was “eminently dangerous” to those who died but not specifically targeted at them; and whether he was indifferent to the loss of life. His mindset couldn’t be known, but it could be inferred from all the evidence.

Tyler Bliss, Thompson’s attorney, made an objection that the jury instructions needed to include the depraved mind element because it held a distinct moral weight essential to third-degree murder.

“This could result in the difference between a conviction and not a conviction in this case,” he argued to Judge Carolina Lamas.

Lamas declined to change the jury instructions, saying the guide was well reasoned and the phrase “evincing a depraved mind” was confusing to jurors.

Thompson was convicted on five counts of third-degree murder.

Lucas Sundelius, a 21-year-old University of Minnesota student who served on Thompson’s jury, said finding him guilty of criminal vehicular homicide took minutes. Third-degree murder was different, especially on whether or not Thompson was indifferent to the loss of human life.

“He’s not going out there to run someone over, there’s no shot,” Sundelius said. “That’s not how 99.99 repeating percent of people work as humans. You’re driving fast, real fast, it’s dangerous. Obviously if you hit something it’s going to be vaporized.”

One of the most referenced cases in state legal history involving third-degree murder is from 1923. It involved a drunken driver during Prohibition who killed a woman crossing the street. The opinion explained why state of mind was essential to Minnesota’s law on third-degree murder:

“If the act inevitably endangers human life, as every sane man must know, is it not in and of itself convincing proof that the doer had a depraved inclination to mischief, that he had no regard for social duty, that he was generally reckless of life-possessed, in short, of a depraved mind?”

When Bailey entered his guilty plea, there were no jury instructions. His plea had to hit the legal definition of third-degree murder.

His attorney asked if he agreed that his actions “evinced a depraved mind without regard for human life?”

“I do,” Bailey answered.

Rep. Larry Kraft, DFL-St. Louis Park, drafted the new state law on repeat DWI offenders. It requires a driver to use an interlock system in their car, which tests for blood alcohol content, for a longer period of time.

It passed with overwhelming bipartisan support.

He said his interest in the topic intensified because the tragedy at the Park Tavern patio hit his community so hard, and he was shocked to learn how many people die on Minnesota roads each year.

“So many people die because of cars,” he said. “We are desensitized to it.”

Kraft hopes the work of making roads safer can continue without another tragedy.

In the courts, Thompson and Bailey will be sentenced in July.

In August, a jury trial is scheduled in Hennepin County for a car crash in north Minneapolis last year in which two people died. Teniki Steward, the woman who allegedly caused the crash while speeding, was initially charged with criminal vehicular homicide. The charges were later amended to include two counts of third-degree murder.