One night in the spring of 2005, Anissa Jordan was sitting in a car in San Francisco while her boyfriend attempted to rob a young man nearby. Shortly after, police arrested both Anissa and her boyfriend. Anissa was detained and dressed in an orange jumpsuit before she learned that the young man had been shot and killed that night and that she and her boyfriend would both be held responsible. The charge: felony murder.
The felony-murder rule, which exists in more than 40 states, allows prosecutors to charge accomplices to certain crimes, such as conspiracy to commit robbery, with murder, even if they didn’t intend to kill—and even if they weren’t present for the murder. It does so by removing intent to kill from the calculus of what makes a murderer. Critics say the rule has disproportionately led to the incarceration of youth of color and women, such as Anissa, but some prosecutors say the felony-murder rule is the key to holding police officers responsible in the killings of civilians.
“By propping up this terrible rule, however we do it, we have to understand this rule is primarily used against Black people and people of color,” says Kate Chatfield, a director at the Justice Collaborative.
This week on The Experiment, a look at the doctrine that prosecutors used to convict Anissa for a crime she didn’t even witness, and a debate over whether that same rule is crucial to prosecuting the highest-profile case in the country, The State of Minnesota v. Derek Chauvin.
Further reading: “What Makes a Murderer?”
This episode is part of The Atlantic’s project “The Cycle,” which is supported by a grant from the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge.
Be part of The Experiment. Use the hashtag #TheExperimentPodcast, or write to us at firstname.lastname@example.org.
This episode was produced by Alvin Melathe and Julia Longoria, with editing by Katherine Wells. Fact-check by Will Gordon. Sound design by David Herman. Special thanks to Adam Harris and John Swansburg.
Music by Water Feature (“With Flowers,” “Richard III(Duke of Gloucester),” and “A Paradise”), Keyboard (“Being There” and “My Atelier”), H Hunt (“C U Soon” and “Having a Bath”), and R McCarthy (“Home/Home”), provided by Tasty Morsels. Additional music by Bruce Wiley McKinnon Jr. (“Are You a Freak”) and Tyler O. Sterrett and Jason Trotta (“The Hamlet”). Additional audio from KQED and MPR News.
A transcript of this episode is presented below:
(Birds fly past, wings fluttering and flapping. Over light harmonics, chirping and tweeting fills the air. Then, suddenly, a wind-down and quiet.)
Julia Longoria: Do you … Anissa, do you ever dream about prison?
Anissa Jordan: No.
Jordan: (Emphatically.) No.
Jordan: No, never. [Both start to chuckle, then laugh.] That’s the last thing I think about.
(Light, dreamy piano music plays, with the buzz of a record on a turntable. Birds twitter in the background.)
Longoria: Before Anissa Jordan went to prison, she’d just met someone new.
Jordan: My godmother introduced me to Douglas.
Longoria: She had never been married before. She was already a grown woman in her 30s with four kids when she met Douglas.
Longoria: How did you know you were in love?
Jordan: The feeling downs in my stomach—like I have butterflies.
(Wings hum over the music—butterflies.)
Jordan: I tell him, like, “Serenade me.” He would sing for me, like, [Janet] Kay’s “Missing You”; Mariah Carey, “We Belong Together.” He would dance, you know—and he wasn’t that kind of guy, but he would do it for me. [A breath.] He put a spark in my life.
Longoria: She hadn’t come alive like that with anybody for a long time. Maybe since she was a kid.
Jordan: It was eight of us: four girls, four boys.
Longoria: Did you have a favorite sibling?
Jordan: Althenia. She was the oldest sister and I was the baby. If she go out to a party or something, I would wait till she come home and I’ll be like, “Girl, what you was doing there?” She was like, “Girl, you better go to bed.” But I’d be like, “I want to know!” Just being nosy, like what a little sister would do.
I could just always talk to her. She was like my friend—my best friend.
(The music warps and cuts out.)
Jordan: She got killed. And they found her on West MacArthur. And, like, whoever killed her, they tortured her. Like, they burned cigarette holes in her chest. It was horrible.
Longoria: (So quietly.) Oh my god.
Jordan: (Tearfully.) Yeah.
Longoria: She was in the fourth grade when it happened. And the murder was never solved.
Jordan: I wouldn’t sleep in my room—’cause, you know, me and her shared a room. I was scared. I slept with my mom for a whole year.
That’s when I started rebelling.
Longoria: She rebelled by skipping school and smoking weed. Eventually, she says she got out of control: shoplifting, selling drugs. She did some time in juvie.
(Slow, distorted piano music begins.)
Jordan: I thought I was grown when I still was a kid.
Longoria: And even into adulthood, she just kind of moved around the world in a sort of sleepwalk.
Jordan: Like, before I met him … You know how you can go into a dark place or, like, you could be depressed and don’t know it? You just feel tired. I didn’t think. Like, I—I basically didn’t care.
Longoria: That is ... until Douglas came along.
(The music shifts, becoming brighter and lighter. Cymbals join in.)
Jordan: Yeah. He’d be like, “Oh, I’m gonna take you somewhere.” And I’ll be like, “Where?” And be spontaneous. He’d take me to Fairyland, a place I used to go as a kid.
Longoria: One day, Douglas presented Anissa with a proposal.
(The music shifts back, seeming almost more distorted in contrast.)
Jordan: Basically, it was a plan to rob people. It was.
Longoria: And Anissa would play a key role in this plan.
Jordan: I was going to ask people for drugs and he was gonna rob them.
Jordan: He was like, “No one’s going to get hurt.” I was like, “Okay.” You know. I guess I was like, “I’m doing this for my man.”
(Now quieter, more sparse music plays softly underneath.)
Jordan: We was driving.
Longoria: May 14, 2005, the couple sets out to San Francisco by car.
Jordan: I just wasn’t feeling right all that day. I was high. I’ve been taking ecstasy pills and just, like, my mind was wore out.
I had this jittery feeling in my stomach. When we was on the freeway, something just kept telling me like, “Go home. Go home.” And I just didn’t take the warning sign.
Longoria: They arrived at TL—the Tenderloin—in San Francisco with a couple friends.
Jordan: And so we had got out and walked. And we seen two black boys with a girl—a black girl. Douglas was walking far back, and he seen them. He was just like, “Ask them right there.” I was like, “Do y’all got some ecstasy pills for sale?” And the boy was like, “No.”
Longoria: And everything went according to plan.
Jordan: That’s when him and Lenore robbed him.
Longoria: Douglas pointed a gun at them.
Jordan: And made them lay down on the ground.
Longoria: Did you know he had a gun?
Jordan: (After a long moment.) Yeah. Yeah, I knew.
I went into shock. Like I really couldn’t believe I was just doing this dumb-ass shit. I just couldn’t.
(Music fades down and out.)
Longoria: Then things went a little off script. Anissa says she froze, unable to move, as Douglas ran back to the car to stash everything.
Jordan: They was calling my name, talking ’bout, “Anissa, come on! Get in the car, get in the car.” And then, um, I came and got in the car. Douglas was like, “Put this in your purse. Put this in your purse.”
Longoria: Anissa says that’s when Douglas and his friend went back outside to do another robbery.
Jordan: Douglas told me, “Don’t get out the car.”
(R&B atmosphere plays.)
Jordan: I was listening to R Kelly. … I think it was “Feelin’ On My [sic] Booty.”
(The music crescendoes and broadens and then, suddenly, cuts out to the sound of a car door opening, an ignition starting, and the frantic beeps of car warning lights. A police siren comes in.)
Jordan: And then, um, next thing you know, they came back running to the car. And as soon as we get to the light, the police pulled us over.
(The sounds cut out.)
Longoria: When did you know something had gone wrong?
Jordan: When I put them orange clothes on.
Longoria: Dressed in prison clothes, she learned that while she was in the car, listening to R Kelly, Douglas had done more than just rob somebody.
Jordan: The second one—that’s when the boy got killed.
Longoria: Douglas had shot and killed a man named Carlos Garvin. He was gonna be charged with murder. But this was the weird thing. They didn’t just charge Douglas with murder. They charged Anissa too.
Jordan: I’m not no murderer. I’m not a killer. I never seen what happened. I was in the car the whole time.
(Soft, gentle music plays.)
Longoria: It seemed like some kind of mistake. But it wasn’t a mistake. Anissa was charged with murder under a rule that allows prosecutors to charge people like her. All four people sitting in the car that day were charged with murder.
Jordan: I felt like, “How can four people pull one trigger?” That doesn’t make no sense to me.
Longoria: The jury ultimately acquitted the person driving the car. But they convicted Anissa of murder. Her only hope would be leniency in her sentencing.
Jordan: I had got up and I spoke and, um, yes, I did cry. I apologize to the deceased’s family. I just stood up in my chair. I told the judge that this is not fair because I didn’t murder nobody. I didn’t kill nobody. I wasn’t even there.
Longoria: Then the judge announced her sentence.
Jordan: He told me I got 27 to life. And I just looked like I was really in shock. I couldn’t believe it. I said, “What? Life?” And I looked back at my mom and my brother … I just couldn’t believe it. (A beat.) I couldn’t believe it.
Longoria: This week, we take a close look at the rule in our criminal justice system that gave Anissa Jordan a life sentence for a murder that her boyfriend committed. How can a rule like that, which affects many women like Anissa—how could it possibly bring us justice?
I’m Julia Longoria. This is The Experiment, a show about our unfinished country.
(A beat of space and silence.)
Longoria: The rule in our criminal justice system that helped put Anissa Jordan in prison for life has a name.
Longoria: Had you ever heard of the term “felony murder”?
Jordan: Oh, now I heard of it. I mean, I studied! [Both chuckle lightly.] But yes, I studied. I had a Black’s Law Dictionary, stayed in the law library. I learned a lot, though. It’s a old law, a old law. Like, it come from British or something like that.
Lara Bazelon: It has this really weird, murky origin. People attribute it to a famous British scholar …
Longoria: Lara Bazelon is a law professor at the University of San Francisco who wrote about Anissa’s case for The Atlantic. And she says the idea of the felony murder rule developed kind of like a game of telephone.
Bazelon: The history of it, it—it dates back ... I mean, maybe even—oh my god—it looks like it even dates back to 1535.
(Whistling music creates the ambiance of Old England.)
Longoria: One of the earliest versions of felony murder came from a 16th-century case in England.
Bazelon: There’s a guy—his name is Lord Dacres—and he is going out with his friends. And they decide that they’re going to hunt on someone else’s property to poach these, I guess, valuable pheasants. They also decide that if anybody tries to stop them, they are going to use lethal force. In any event, someone in his party killed a gamekeeper who confronted them. And even though Lord Dacres wasn’t actually physically there, he was held responsible for this killing, ’cause it was his idea, and he was hanged along with everybody else in that hunting party.
Longoria: Over the centuries, that case formed the basis for a more radical idea, which was that you didn’t even need to intend to kill anybody in order to be charged with murder. If someone died while you were intending to commit some other serious crime—like poaching pheasants or conspiring to rob somebody—you could still be held responsible for murder.
Bazelon: The thinking is, basically, “in for a penny, in for a pound.” So, if you decide that you’re going to do something really dangerous—like help your boyfriend rob somebody—and your boyfriend shoots and kills the victim, because you helped with the robbery and knew he was going to commit the robbery, you’re just as guilty as your boyfriend is. And it’s a hard kind of thinking to wrap your mind around, particularly because in that attempted robbery, she wasn’t even present.
Longoria: And this idea of, like, “in for a penny, in for a pound,” is that something—like, how common is that in our criminal justice system?
Bazelon: It’s extremely common.
Longoria: Over 40 states and the District of Columbia have some version of the felony murder rule on their books.
Bazelon: Basically, it’s deterrent, trying to suggest to people, “You shouldn’t be participating in any of this dangerous conduct at all.” There’s a sense of visceral justice that, in your gut, you think, “But for that guy, this would never have happened. But for that woman, this never would have happened.” And it allows you to—to [Choosing her words carefully.] feel like this raw justice was done because they deserved it.
Jordan: Kamala Harris was the D.A. then, and Gavin Newson was the mayor.
Longoria: In 2006, the year that Anissa’s verdict came down, San Francisco’s District Attorney was Kamala Harris.
Kamala Harris: Um, I strongly believe—and the work of my office has proven it to be true—that, when we’re talking about serious and violent crime, lock ’em up. In San Francisco, in my office, we’ve increased the conviction rates for the D.A.’s office to the highest rates they’ve been in just under 15 years.
Longoria: Back then, as she said in a later interview, she and the mayor, Gavin Newsom, wanted to be tough on crime.
Bazelon: They, like many Democrats, wanted to come across as people who were not going to be seen as “soft on crime”—that were going to be seen as—I think the catchphrase was—“smart on crime.” And that meant holding people accountable, particularly for—for violent crimes.
Longoria: When Anissa’s verdict came down …
Jordan: Our case was on the news and in the newspaper and things like that.
Longoria: … Kamala Harris and the mayor held a press conference to celebrate the verdict.
Bazelon: What Kamala Harris said was, the verdict showed that her office had made good on its commitment to cracking down on crimes that involved guns.
(Synthesizer melodies meander through the background.)
Jordan: Everyone has to pay a price. But I feel like … Be held accountable for your part. I’m not a murderer.
(A long moment of music.)
Jordan: When I had got to prison, I didn’t get caught up in prison politics. I didn’t do nothing. I stayed in the law library. I stayed in my word, and I stayed on the right path. My focus was to get out.
Longoria: Anissa had been in prison for about ten years—reading the Bible, taking classes, educating herself—while outside prison, there was a fight forming.
Kate Chatfield: I’ll try to watch, uh, my, uh, swearing. I mean, I can’t promise it.
Longoria: Alright. Cool. I mean, feel free to swear as much as you’d like! [Chatfield laughs.] Truly! I mean, like, I’d prefer it. (Fades under.)
Longoria: I called up Kate Chatfield, a director at the Justice Collaborative.
Chatfield: I’ve—probably have a lot of, uh, unresolved anger issues and being in a courtroom is a good way to work those out.
Longoria: I mean, is a courtroom the right place to—to get out those issues? (Both laugh.)
Chatfield: Absolutely, man!
Longoria: Yeah? (Both laugh.)
Chatfield: Absolutely! “How dare you charge my client? How did—this is an outrage!”
Longoria: Among the things that make Kate angry is the felony murder rule.
Chatfield: It doesn’t make sense. Murder is a homicide with malice, right? Somebody has to intend the murder. Now I’m being told about this rule where, “Okay. Okay. Wait. There’s this huge glaring ginormous exception over here, to murder.” And that’s the felony murder rule, and it sweeps up on a lot of people, year in, year out. So it’s just the exception that—that eats the rule.
Longoria: She heard about dozens of cases, like Anissa’s. One of the most striking ones to her was a group of teenagers who decided one day to sneak into an old man’s house and steal some stuff. One of the boys wandered by himself into the kitchen.
Chatfield: He’s 15 years old. He’s looking through the drawers.
Longoria: And he takes some chocolates. Meanwhile, two of his friends—who were a little older than him—were in another part of the house and they encounter the owner, who turned out to be at home. It seems like they got into some kind of fight.
Chatfield: And the elderly resident—he dies.
Longoria: Two older boys were charged with murder, but so was the 15 year-old, who was in the kitchen, stealing chocolates.
Chatfield: And they’re saying, “You had the intention to go and commit that burglary.” So that’s the underlying felony, which is a burglary. And they said, “And a death occurred during that felony. So, therefore, we’re going to charge you with murder.”
Longoria: I see. So, with felony murder, there has to be some, like, intent to do something else that’s criminal.
Chatfield: Yes! Yes, yes. Exactly.
Longoria: And it sort of, like, that intent like stands in—
Chatfield: (Very enthusiastically.) Yes!
Longoria: —or, like, swells into this larger intent to kill.
Chatfield: Yes! That’s exactly right. The fact that you were engaged in a burglary and somebody died? Felony murder.
Longoria: The 15 year-old in that case got 25 years to life.
Chatfield: It’s a barbaric rule. It’s—we have to have laws that connect our culpability with our intention. What did we intend to do? What did we actually do? And what did we intend to have happen? This rule has been abolished and every other country that derives its law from the English common law—even in England! It’s no longer a rule in England. We’re the last—the last vestige of this barbaric rule.
Longoria: Kate helped do a survey of inmates in California serving time for felony murder. They found that the rule was disproportionately affecting women and youth of color, and that 72% of women serving life sentences for felony murder had not actually killed anyone. Nearly two-thirds of the time, the killer—the person who, quote-unquote, pulled the trigger—was the woman’s romantic partner.
Chatfield: We then drafted a resolution by both houses of the legislature in California—the Assembly and the Senate—that sort of outlined what the felony murder rule was, and why we need to change it.
Longoria: Their bill would essentially gut the felony rule in California. It would make it so that you could only prosecute the person who did the killing themselves, someone who was a major participant in the felony who had reckless indifference to human life, or someone who aided in the killing—but that person would also need to have had an intent to kill.
Longoria: And who was kind of against you?
Chatfield: Oh, the California District Attorneys Association. This was their number one kill bill.
Longoria: But, after 6 months of debate, the bill passed in the state assembly by one vote. And what happened next was assembly staffers contacted the California’s prisons.
Chatfield: And they said, “Please help Kate Chatfield to go on a tour of prisons throughout California to educate people about the law and to see if they’re eligible for re-sentencing so they can petition the court to go back and get re-sentenced. So, I think we went to almost every prison in the state of California.
(Dreamy music starts to play, conjuring a vast, resonant space.)
Longoria: One of the prisoners Kate Chatfield visited in prison was Anissa Jordan.
Jordan: The lady in the law library was talking about, “Oh, this new thing coming into effect.” So I started reading on it.
Longoria: This law was retroactive, so Anissa would be one of the people who would be eligible for release.
Jordan: So, I was like, “What?” I couldn’t believe it. Like, I was really, really leaving. It was like butterflies swarmed the whole prison. It was just like butterflies in the prison for a whole week. And, um, my roommate said, “You leavin’. Your freedom is coming. You leaving.”
Longoria: Advocates say the gutting of the felony murder rule in California could affect hundreds of prisoners. The rule’s also been gutted in Hawaii, Kentucky, Michigan, and Massachusetts, and there are movements brewing to reform the felony murder rules in Pennsylvania and Minnesota.
(Chanting starts in the background.)
Longoria: But, in the last few months …
(Chants from racial justice protestors continue: “No justice, no peace.”)
Longoria: … the rule’s been used in a way you might not expect…
(The chanting continues: “Prosecute the police!”)
Longoria: That’s after the break.
Keith Ellison: My name is Keith Ellison. I’m the attorney general for the state of Minnesota.
Longoria: And how should I refer to you? Do people refer to you as A.G. Ellison? Or, like, what—what do you like?
Ellison: They call me Keith.
Longoria: Alright, Keith.
Longoria: (Laughs.) Well, Keith, I wanted to talk to you because you’re the prosecutor on the most high-profile police case in the country right now. So, in the case, against former officer Derek Chauvin …
Ellison: (Interrupting.) Now, see, here’s the problem.
Ellison: I can’t really talk about that case.
Longoria: I talked to Keith back in February, before the murder trial of Derek Chauvin even started.
Ellison: I have to be worried about his right to a fair trial. …
Longoria: Totally understand.
Ellison: … And cannot say things to gin up hostility against him. I want to see him convicted on the evidence.
Longoria: And last week, Keith’s office did just that.
Judge Peter A. Cahill: Members of the jury, I will now read the verdicts as they’ll appear in the permanent records of the fourth judicial district, State of Minnesota … (Fades out.)
Longoria: And you wouldn’t be able to tell from most of the headlines, but the jury in this case was not asked to consider whether Chauvin intended to kill George Floyd.
Judge Cahill: Verdict Count One: unintentional second degree murder while committing a felony. We, the jury, find the defendant guilty.
Longoria: What the jury was instructed to consider was if Chauvin intended to assault him and if Chauvin caused his death. The charge was felony murder.
Longoria: I wonder when—when you’re thinking about prosecuting crimes, what do you think the role of intent should be?
Ellison: Intent does matter. But there are a lot of things that people will do wrong that they don’t have the intent for. Say, for example, if somebody is driving by in a car and shoots into a house and they kill somebody. Now, they may not have been aiming at that person. They might not even know that person. But what they did is so inherently wrong that even if they did not intend to kill a particular person, that—they still need to be held responsible for what they did.
Longoria: In the case of George Floyd’s death, Derek Chauvin has been convicted of felony murder. There were 3 other officers standing by while Chauvin murdered George Floyd. At first, those officers weren’t charged with anything. Then Keith charged those officers with felony murder too. Technically, under the law, they could serve the same amount of time that Chauvin will. They’ll face trial in the next few months.
Ellison: Well, let me just say—and I’m speaking theoretically here—the thing is that the state still has to prove that the, uh, aiders and abetters, in fact, aided and abetted. And just being there is not going to be enough.
You’re gonna have to have to prove that they assisted in the commission of that crime. And then you got—the jury might not buy it. They might buy it. They might not buy it.
Longoria: And so, in the case of Derek Chauvin—which I know we can’t talk about specifically …
Ellison: Yeah, I—it’s—that really—that creates problems for me to talk about.
Longoria: Yep. Okay. So, um … (She searches for words for a long moment, then sighs.)
Longoria: I was struggling to understand why Keith used felony murder, this rule that other states were trying to get rid of. Couldn’t he have used something else to prosecute these officers? But he just couldn’t get into the specifics of this case to answer my question. So I called Melissa Redmon, a professor of law at the University of Georgia.
Melissa Redmon: I actually went to law school. I was a claims adjuster for Geico, which I also loved. My initial thought was to be corporate counsel for Geico.
(A low, quiet drone plays.)
Longoria: But she didn’t do that. She ended going into criminal law, spent years as a defense attorney, then as a prosecutor. And it turns out that she prosecuted a case a lot like Derek Chauvin’s back in 2014. Before the death of George Floyd, before Michael Brown, before Eric Garner, there was Gregory Towns.
Longoria: How did it all start?
Redmon: It started with the domestic violence call.
Longoria: A woman in the East Point suburb of Atlanta called 911, saying her boyfriend assaulted her. Two minutes later, two police officers showed up to her townhouse complex and see a man who fits the description of her boyfriend: Gregory.
Redmon: As the police were arriving, he was leaving on foot. They say, “Hey, we got a call about a domestic dispute.” He kind of backs away, and then he takes off running.
Longoria: Gregory Towns disappeared into the woods nearby.
Redmon: They both start chasing him at first. One turns back to secure the police car.
Longoria: The officer chasing him finally corners him into the woods.
Redmon: And there he’s kind of worn out and tired and on the ground—I think at some point he trips and falls—and says, “Okay, you got me.” But couldn’t walk.
Longoria: The officer handcuffs him and calls for backup. That’s when Sergeant Marcus Eberhart and Corporal Howard Weems Jr. arrive on the scene. They try to get him to get up and move.
Redmon: And basically kept saying, “I can’t breathe. Just let me rest.” And they started using the tasers as a cattle prod to get him to get up and walk. He would get up and walk a few steps in and then collapse again, again saying, you know, “Just give me a minute. I’m tired. Just—just give me a minute.”
Longoria: The officers fired their tasers 14 times.
Redmon: They were ready to get out of the woods, and they were annoyed, and they just kept prodding him and prodding him with these tasers until his heart gave out.
(A somber moment with no narration.)
Longoria: What did you make of your chances to get a conviction, based on the facts of the case?
Redmon: Well, it was very difficult, because it wasn’t a shooting case. It wasn’t a case where he was beaten, you know? He had underlying health issues that made him susceptible to his heart giving out from the repeated stimulation from the tasing.
Longoria: Tasers, at the time in 2014, weren’t marketed as lethal weapons. So did the officers intend to kill the man with tasers? Maybe not. But he did die as a result of their actions. So, is that murder? And, if so, what kind?
Redmon: Felony murder is going to be the only option you have in prosecuting a police officer for conduct that results in a death.
You’re very unlikely to convince a jury that any officer intentionally set out in their actions to take the life of a civilian. So, being able to prove that they intended to put their knee on the neck of George Floyd, or they intended to commit whatever underlying felony existed, and that felony resulted in the death of someone is a much easier case to prove and fits the facts of the case.
Longoria: With felony murder, Melissa needed to prove that the officers intended not to kill, but to commit aggravated assault, in this case by tasing. Even so, her odds of conviction were slim.
Redmon: It’s very rare. It was kind of like, you know, “This is—we may not get a conviction, but if there is a case, this is the case.” But you can’t tase someone, you know, 13, 14 times when they’re handcuffed on the ground, just asking you to give them a minute to catch their breath. Like, you can’t not prosecute that case.
I remember the family just wanting the offices to acknowledge that they did something wrong, that this son and this father was no longer with us because of what they did and how unnecessary it was. Like, all they had to do was wait and be a little bit patient and Mr. Towns would still be alive. And I think it was the senselessness of it—like, this didn’t have to happen—that kind of stuck with us during the entire trial.
Longoria: After a two-week trial, the jury in this case decided the sergeant was guilty.
(Slow, low music plays.)
Redmon: And that’s it.
Longoria: And how did you feel when—when—when they said that you got a conviction?
Redmon: I was glad for the family. I mean, you’re never really happy because it really doesn’t change the fact that this person is no longer with us, but you do hope it changes something. You know, you hope it sends a message of what’s acceptable and what’s not. And it—you hope that you’ve prevented another death by another police officer. Unfortunately, there—I think there were two or three other deaths from—from tasers in Georgia after this case. So we didn’t really accomplish that.
But if you believe that people who commit crimes should be held responsible for their actions, then that’s really the outcome you want, is a jury saying, “Yes, these individuals are responsible for the death of Mr. Towns and they need to be punished for that.”
Longoria: Sergeant Eberhart would later be sentenced to life in prison. The other officer—his subordinate, Weems—was acquitted of the felony murder charge and ended up with a 18-month prison sentence for involuntary manslaughter.
Chatfield: I understand that we need to hold police accountable. Believe me, I understand that. But we can’t use this terrible rule to do so.
Longoria: Kate Chatfield again, who fought the felony murder rule in California.
Chatfield: I think the use of the felony murder rule is wrong. It’s a shortcut to get a murder conviction. I think it’s wrong whether it’s used against an officer or against anybody.
Longoria: She says Derek Chauvin could not have been charged with felony murder in California even before the reform. She says there are other routes to convict him in her state. Like, he could have been charged with second-degree murder. They could have taken the extra step to show Chauvin had a conscious disregard for human life. Or they could have charged him with intentional murder.
Chatfield: By propping up this terrible rule, however we do it, we have to understand this rule is primarily used against Black people and people of color, and the effects of this law have been and will continue to be borne by young people of color in this country.
Longoria: So, if the felony murder rule were the only way to effectively prosecute police officers who kill, would you still not use it?
Chatfield: (Laughs bitterly.) I just can’t accept that. I mean, that’s just like a—not … It’s a false question. I’m sorry. It’s just, like—it’s not the only way.
It’s a lazy prosecutor’s way to get to murder. And it’s like, no. Show the intent to kill. Because you have plenty of evidence that there’s an intent to kill, you know? And—and show that to the jury. And if the jury decides, “Yeah, he intended to kill him”—after, like, the prosecutor proves it—then that’s murder.
And I’m not saying that these officers can’t be charged with murder. I just want to see the felony murder rule, you know, abolished, end stop.
Ellison: I will say this about the felony murder rule. It is an important tool, but there are situations where it’s not appropriate and where it does seem really unfair.
Longoria: I asked Keith about this, and he agreed that there is a kind of case where the felony murder rule results in an injustice.
Ellison: I mean, I’ve seen a situation where a man grabs a female partner—his partner—and says, “Come with me.”
Longoria: Situations like Anissa’s.
Ellison: “You were there in the commission of a felony—a robbery—and somebody was killed. Even though you didn’t do it, you were an accomplice, and you assisted in the commission of that offense.” That seems to be a manifest injustice to me.
Longoria: Both Keith and Melissa aren’t opposed to reform: limiting who can be charged with felony murder, or changing guidelines for sentencing those people. But it’s not necessarily clear where the line would be drawn between someone like Anissa and someone like Chauvin, or the officers who stood by while Chauvin murdered George Floyd.
(Delicately, ever so slightly, music plays underneath.)
Ellison: Let me tell you, a justice system—we’re not a justice system, but we’re trying to be one. And what that means is that justice should have mercy in there too. It should factor in shades of culpability.
Longoria: So w-what do you say to people who say, like, “The felony murder rule is basically a lazy way for prosecutors to get a—a conviction.”
Ellison: Well, I guess, to those people, what I would say is, if somebody comes to me with a good way to reform the felony murder rule—to make it work as it should—then I think that that’s fine. If somebody wants to just say, “It should never exist.” I guess I don’t agree with them on that one, but, I mean, it’s this ever-evolving thing where we have this society that has a lot of injustice in it, but people still need some justice. So we got to keep on trying ’til we get it right.
Longoria: I admire your—your hope in the system [Chuckles.] Keith.
Ellison: Well, again … Now, let me just say this. I also think saying, “Everything sucks. Nothing’s right. Everybody’s crooked.” I think that’s sort of a cop-out too, though, right?
Ellison: I mean, if somebody went to MLK in 1950 and said, “Dude, what are you—what are you leading this protest for, man? This, you know, it’s al—we’ve always had racism, slavery, Jim Crow. And we’re always going to have it! So you are just wasting your time! You’re naïve! You believe in the system. And I’m hip and cool and aware and I’m woke. And I don’t believe in it, so I’m not going to waste my time trying to reform anything.” Hmm. I’m not on that team. I don’t see the world that way.
(The music plays up fuller, with a weird, artificial, wind chime-like sound. Then, it plays out.)
Longoria: Anissa, are you … I—I hear, like, water running in the background. Are you near some water?
Jordan: That’s my my fish tank. Yeah, my fish tank.
Longoria: (Laughs lightly.) Oh, your fish tank. What kind of fish do you have?
Jordan: Okay. I have a—um, an albino oscar. A African fish, it got stripes on it.
Longoria: How big are they?
Jordan: Oh, they’re getting big. [Longoria laughs.] Yeah.
Longoria: So, if you could take like a little step away from the fish tank—I’m hear—you sounded like you were, like, in a water wonderland. (Both laugh earnestly.)
Jordan: I moved.
Longoria: Cool. Thank you. Um, so … How—how do you think back now on—on everything that happened to you?
Jordan: I look back like I shouldn’t have got all that time. But it helped me, ’cause I learned a lot, you know? As I was there, I started bettering myself and learning a lot of things about myself. You know, like my behavior—where it come from.
I took this group. It’s called, “Why Do We Do the Things that We Do?” That group was really, really deep, ’cause it’d take you back all the way to your childhood.
It was like a psychology class. It talked about depression, stress, things have happened to me and, you know, like, how you suppress stuff—and suppress, and it’s not good, ’cause when you suppress, you explode.
(A light, hopeful drone enters. It feels like a sunrise.)
Jordan: It’s like anger. You make the wrong decisions when you angry, instead of thinking things through.
Jordan: I was foolish.
I was foolish. I really was foolish, ’cause I allowed my foolish behavior to put me in a position where somebody else got hurt. And I just know that’s not my character.
Like, I don’t—I don’t, um, condones people getting killed or harmed or anything like that because my sister lost her life being in the streets.
Longoria: Another thing I wanted to ask you about is that the felony murder rule is actually being used in the case of George Floyd to prosecute police officers who killed unarmed civilians. What do you think about that?
Jordan: Oh, you talking about the guy? Well, I seen that on the news. That was horrible.
It’s bullshit. ’Cause, to me, he intended on killing him. ’Cause all he had to do was handcuff him. He didn’t have to do all that extra shit.
Longoria: But—but what about the officer who’s standing by?
Jordan: Yeah. They could have prevented it. They could have stopped their partner. They didn’t even try.
Longoria: Is it different when it’s applied to police?
Jordan: Imma say this: police are human, too.
I just feel like we should be fair. It should be fair all around the board, because, at the end of the day [A long beat.] God just only see his people.
(Gentle, easy-listening piano music plays for a moment before the credits start.)
Alvin Melathe: This episode was produced by Julia Longoria and me, Alvin Melathe, with editing by Katherine Wells. Fact-check by Will Gordon. Sound design by David Herman. Music by Tasty Morsels. Special thanks to Adam Harris and John Swansburg.
The team also includes Gabrielle Berbey, Emily Botein, Natalia Ramirez, Tracie Hunte and Matt Collette.
This episode is part of The Atlantic’s project “The Cycle,” which is supported by a grant from the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge.
You can find Lara Bazelon’s full article, “What Makes a Murderer?,” at our website: http://www.theatlantic.com/experiment. And if you appreciated this week’s episode, please leave us a review on Apple Podcasts.
The Experiment is a co-production of The Atlantic and WNYC Studios. Thanks for listening.
(As the piano delicately plays out, the episode ends.)