This is the first Minnesota case law result for “lesser included offense of second degree murder:“
State v. Leinweber, 228 NW 2d 120 - Minn: Supreme Court 1975 - Google Scholar
The first sentences of the case lay out the procedural posture, starting with the indicted charges and the result at the trial level:
“Defendant, Harry Alexander Leinweber, was
charged by information with murder in the second degree for the shooting death in June 1971 of his wife.
Following an 18-day trial, the jury found him guilty of the lesser offense of murder in the third degree, and he was sentenced to imprisonment for an indeterminate term of not more than 25 years.
So the prosecutor “introduced” the charge of second degree murder and lost. But the guy didn’t walk, like you said he should. The defendant still got convicted of a lesser offense. He got a 25 year sentence.
Turns out the judge, consistent with Minnesota law (and as far as I know, the law in all 50 states) instructed the jury on
lesser included offenses. They convicted him of a lesser offense, just like I said they could and just like the state’s attorney general would know that they could.
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But wait, there’s more: Mr. Leinweber agreed with you and thought this was an affront to justice. He appealed. But his lawyer wasn’t aware of this “overcharged defendant walks if not convicted of top charge” silver bullet, so he appealed on the grounds that the judge didn’t charge
enough lesser included offenses.
And the Supreme Court of Minnesota, instead of asking “what is a lesser included offense,”
agreed! This man got a new trial because the judge didn’t instruct the jury about enough alternative crimes.
So this idea that the perp walks if the prosecutor fails to prove the charge on the indictment is news to the prosecutor, defense attorney, trial judge, jury, appellate judges, and Supreme Court of Minnesota. And that has been the case since 1975!
This cop may very well earn a full acquittal.* In fact, for reasons I wrote out earlier, I’d be more surprised by a conviction, even for any lesser included, than I would by a straight acquittal. But the odds that it will have anything to do with this charging decision are extremely remote, because the jury will be instructed on lesser included offenses, consistent with Minnesota law.
They’ll be instructed on third degree murder and any other lesser included required under Minnesota law.
You clearly have a romanticized view of the criminal legal system that probably developed from watching Law & Order reruns. Take a day off from Dunning & Kruger, go down to your local courthouse, and watch a day of the lowest level criminal court you can find. Then come back and tell me how much I don’t know about how great suspected criminals are treated in America.
*- although suspect your interpretation of the necessary evidence for a conviction on murder 2 is erroneous as well. Those issues tend to vary slightly on a state-state basis and I don’t care to go down that rabbit hole.