First degree murder is punishable by mandatory life or the death penalty. An individual accused of first degree murder is entitled to have their case heard by a twelve-person jury. The jury's verdict must be unanimous in Florida. An accused commits first degree murder by killing a person "...from premeditated design to effect the death of the person killed or any human being." A killing which occurs during the course of certain statutory felonies can also constitute first degree murder. See §782.04(1)(a) and (b), Fla. Stat. (2013).
Second degree murder is a first degree felony punishable by up to thirty years. A person accused of second degree murder is entitled to have their case heard by a six-person jury. Second degree murder is "the unlawful killing of a human being, when perpetuated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual." §782.04(2), Fla. Stat. (2013). A killing which occurs during the attempt of certain statutory felonies can also be charged as murder in the second degree.
In addition to those offenses, and the offense of third degree murder, is the crime of manslaughter. Manslaughter is a second degree felony punishable by a term of up to fifteen years. Other sentencing enhancements potentially raise the offense itself to a second degree felony and require the imposition of a mandatory term of 25 years. §775.087, Fla. Stat. (2013).
How are these potential punishments relevant to what happened in the Michael Dunn case? The decision to seek a first degree murder conviction in the Dunn case resulted in two hurdles the prosecution did not necessarily have to face.
First, a defendant charged with first degree murder has the absolute right to a twelve-person jury, regardless of whether or not the State is seeking the death penalty. A person charged with second degree (or lesser) murder is entitled only to a six-person jury. Anyone who has ever been in a large group trying to decide what to eat for lunch is well acquainted with the fact that the bigger the group of deciders, the harder it is to reach a decision, especially a unanimous one. This principle was certainly substantiated in the Dunn case, where the initial verdict was 10 to 2 for conviction and the concluding verdict was 9 to 3 for conviction.
Second, in seeking a first degree murder conviction, the State greatly enhanced its burden of proof. To obtain a unanimous conviction it was required to prove, "a premeditated design to effect the death" of Jordan Davis. Had the State sought a second degree murder conviction, it would merely have been required to prove an "unlawful killing...when perpetuated by any act imminently dangerous to another and evincing a depraved mind...although without premeditated design." Since the State did not seek the death penalty in Dunn, a conviction for second degree murder could have resulted in the same sentence of incarceration for Mr. Dunn, namely, life imprisonment.
While it is true the Dunn jury was instructed about lesser included offenses, the fact remains that the State did not waiver from its argument that Mr. Dunn committed the killing of Jordan Davis in a premeditated fashion. It also chained itself to a twelve versus six-person jury. Should this case be retried, and there is every reason to believe it will, the State's continued insistence on a first degree murder conviction would appear to place it at an unnecessary disadvantage while providing it no greater ability to punish Mr. Dunn should he be convicted upon retrial.