Data shows 'depraved mind' statute at play in Noor's case is rarely used

When Hennepin County Attorney Mike Freeman filed charges against former Minneapolis police officer Mohamed Noor last month in the shooting death of Justine Ruszczyk, his announcement brought attention to a sub-section of a statute that's rarely used in the state: Murder in the third degree.

Specifically, it focused on the first paragraph of the statute: "whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life is guilty."

It's a statute that's only resulted in 17 convictions — 13 for third-degree murder and four for attempted third-degree murder — in the last decade in Minnesota. That's partly because prosecutors are forced to prove that the defendant, as the statute outlines, was "evincing a depraved mind" while carrying out a suspected crime.

In this type of charge, "you don't intend to cause the death of a particular person," said Washington County Attorney Pete Orput. "But what you're doing is so eminently dangerous to everybody, you'd have to be a goof to do it. You'd have to have a depraved mind to do it."

The first section of that statute has been used in only 40 cases in Minnesota over the past 10 years, according to data from the state judicial branch. Fewer than half of those cases ended in convictions under the statute.

The cases that did end with convictions clearly illustrated the presence of what the law considers a "depraved mind." In each case — a drive-by shooting, an extreme drunk-driving crash, a deadly beating — the defendant committed an act that was eminently dangerous to human life.

One high-profile example of how prosecutors used the charge began the Friday after Thanksgiving in 2010, when the bars in downtown Rochester were crowded with people. Christopher Allen Trautman drove through an intersection just as a group of friends that had been bar-hopping entered the crosswalk. Despite warnings by his passenger to watch out, Trautman plowed through the group.

"It's OK. I got to keep going," Trautman said, according to the criminal complaint.

He sped up and struck two more pedestrians in a nearby crosswalk. Then his vehicle stopped and he left the scene on foot. He was arrested about two hours later with a blood alcohol level of 0.21 — the legal driving limit in Minnesota is 0.08 — and multiple narcotics in his system. The crash killed one person and seriously injured three others.

Olmsted County Attorney Mark Ostrem remembers the case well. When considering charges against Trautman, he said, second-degree murder — which is used in cases in which a killing is intentional — and the more common charge of criminal vehicular homicide didn't fit.

"But what really fit in the third-degree murder was this committing an act, 'perpetrating an act eminently dangerous to others and evincing a depraved mind without regard to human life,'" he said, quoting the statute. "Those were the keys that made this so much more egregious than just a criminal vehicular homicide, which is causing an accident while driving under the influence of alcohol."

Legal experts use examples like driving a car into a crowd of people, drive-by shootings and pushing boulders off bridges onto freeways to explain the types of actions that fit this type of third-degree murder charge. They're situations in which a person knows what they're doing, knows they're likely to hurt someone, but they're just not sure who they're going to hurt. They say prosecutors must prove that the act is intentional, but that the target is not, in order to get a conviction in a third-degree murder case.

To apply the statute in the Noor case may be a stretch, Orput said, however, there could be more evidence to support the charge in front of a jury.

"I'm sure they were very, very careful in Hennepin County in charging this," he added.

Freeman charged Noor with third-degree murder and second-degree manslaughter in the shooting death of Justine Ruszczyk, a woman who had called 911 to report what she thought was an assault happening in her alley.

Noor had been riding in the passenger seat when he and his partner, Matthew Harrity, responded to the call. Harrity later told investigators that they heard a thump while they were idling in the alley near Ruszczyk's house. Ruszczyk briefly appeared near the driver-side window, he said, and that's when Noor fired one shot, killing her.

In announcing the charges against Noor, Freeman said the officer "recklessly and intentionally" fired his gun.

Prosecutors sometimes weigh third-degree murder against second-degree manslaughter when considering what to file, because of the similarities between the two charges.

Each has a different layer of egregiousness. Second-degree manslaughter calls for proof of culpable negligence. Third-degree murder requires proof of a "eminent danger" and "a depraved mind." Freeman filed both charges against Noor.

"If it looks like somebody is just being stupid, taking risks they shouldn't, that might be manslaughter," Ostrem said, "whereas if it's intentionally doing those things, intentionally taking those risks, instead of being stupidly taking those risks, it might be third-degree murder."

Circumstances that have led to third-degree murder convictions in the past decade in Minnesota vary from crimes of passion to gang feuds that turn deadly.

In 2011, John Ernist Lutgen was convicted of third-degree attempted murder after he attacked the husband of a woman with whom he once had a relationship. Lutgen broke into the couple's home in Cass County and used an 18-inch piece of firewood to assault the woman's husband while repeatedly yelling, "Die," according to the criminal complaint. He was sentenced to nine years in prison, and is now under supervised release.

The following year in Cass County, Brandon Todd Sannan immediately became a suspect in a house fire in the city of Chickamaw Beach, because he had dated the daughter of the homeowners. Charges say he had become possessive and controlling, sending the woman 100 text messages a day, even after they broke up. Sannan reportedly lit the house on fire while nine people were inside. Nobody died in the fire, but he was charged with several counts of attempted murder and arson. In a plea deal, Sannan pleaded guilty to one count of attempted third-degree murder and arson and is now serving a 10-year sentence.

While all of the evidence against Noor has yet to be presented publicly, the criminal complaint lays out a set of facts that some attorneys say don't support a third-degree murder charge.

Melvin Welch, a criminal defense attorney in St. Paul, said the statute is only appropriate when the accused doesn't have a specific target and there could be multiple people involved.

There is no evidence that anybody else was involved in Ruszczyk's death, he said. It was clear she was the only target of the shooting.

"That's where I'm a bit perplexed on this," he said. "Because while I believe there is potentially a basis to pursue the manslaughter in the second degree charge, based on the case law, this is an improper charge."

Welch suspects Freeman filed both charges in order to have leverage at trial.

Noor's defense attorneys will likely challenge the third-degree murder charge in pretrial motions and argue there are no reasonable grounds to move forward with it, legal experts say. But if the charge does proceed, the jury could hear and see additional evidence that otherwise wouldn't be admissible under one charge, therefore, increasing the possibility of a conviction on the lesser manslaughter charge.

"As a prosecutor, you're always looking for leverage," Welch said. "The prosecution is going to have the ability to argue much sharper arguments, much more prejudicial arguments."

Freeman declined an interview request to discuss his decision to file the third-degree murder charge against Noor. In a statement, his office said there are ethical standards that allow him to speak publicly when the charges are first filed and then again at the end of a conviction or acquittal.

"However, we have to go silent in between," the statement said. "Secondly, even if those standards weren't in place, we wouldn't discuss our charging decision because we are focused on obtaining a conviction and do not want to say anything that could be helpful to the defense."

Noor's attorney Thomas Plunkett also declined to comment. Noor's next court hearing is set for May 8.

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