Felony murder in a good cause: Fox News edition

I was invited to appear on FOX News last night for a brief segment to discuss the January 14 sentencing of Montez Terriel Lee, Jr. The segment was tentatively bumped to this evening. I am posting this for viewers in the event that the segment runs tonight. The relevance of the story is enhanced by the fact that sentencing judge Wilhelmina “Mimi” Wright is now reportedly on the shortlist of potential nominees to succeed Justice Breyer on the Supreme Court:

When the authorities let the Minneapolis Police Department’s Third Precinct headquarters burn following the death of George Floyd on Memorial Day 2020, all hell broke loose. Thugs from all over the state made their way to the Twin Cities to participate in the orgy of riots, destruction and looting that spread throughout the Twin Cities. The destruction was wanton.

Hundreds, if not thousands, of people participated in the rampage, but only a few perpetrators have been charged. The Bureau of Alcohol, Tobacco, Firearms, and Explosives led the investigation of 150 arsons throughout the Twin Cities that occurred the week after Floyd’s death. The United States Attorney for the District of Minnesota has brought arson cases against a handful or two of defendants. See generally the Minnesota Reformer story by Rilyn Eischens “One year later, few charges for the arson and destruction.”

Though there was initial chatter that the perpetrators were outside agitators, the defendants charged are mostly homegrown Minnesotans. At least one perpetrator was out on probation, while others appear to have been anarchists or malcontents eager to sow chaos for whatever reason, even if there was no evident gain to be achieved.

One such arsonist was Montez Terriel Lee, Jr. Lee came up to the Twin Cities from Rochester to get in on the action on May 28. Lee was part of a small group that broke into the Max It Pawn Shop on East Lake Street in Minneapolis, home to many minority-owned businesses. The pawn shop was looted. Lee poured out a can of gasoline and ignited a fire that consumed the shop.

Videos captured the action. Lee was proud of it. Filmed outside the shop as it burned, Lee commented: “Fuck this place. We’re gonna burn this bitch down.”

Bystanders knew someone had been caught in the fire. Two months later the authorities found Oscar Lee Stewart, Jr. in the charred remains of the pawn shop. The Star Tribune covered that part of the case here.

The Hennepin County Medical Examiner found that Stewart had probably died of injuries and smoke inhalation as a result of the fire. I take it that Stewart himself was unlawfully in the pawn shop at the time of his death.

Lee is not a good citizen. At the time of the arson, he had a rap sheet with convictions for burglary, theft, assault, and violation of a no contact order. Indeed, Lee was under a sentence for the prior assault in Olmsted County (Rochester) when he burned down the pawn shop. He is that kind of guy.

In a statement posted at Minnesota Uprising Arrestee Support prior to his guilty plea, Lee explained himself:

My name is Montez Lee. I am a 25 year old African American male from Rochester, MN. I am a father to two kids. I am being charged by the federal government on the charges of 1st degree arson. On May 28th, I decided to go to Minneapolis and protest with my community. I have faced injustices from local police departments myself and have been subjected to racism. I wanted to be a part of something bigger. I wanted to show my kids and peers that you fight for what you believe in. I’m sick of seeing people of color murdered by the same people sworn to serve and protect. I’m tired of people turning a blind eye to what’s going on in this country. I am accused of burning down max it pawn on lake street. I did not burn that building nor did I loot or take anything that didn’t belong to me. I went to make my voice heard and my presence known. I am currently being held at the Washington county jail. Though I’ve been here for months fighting this case, I will not let it break my spirit or make me forget my principles. I stand with my community and my people. Until there is change and we are treated as equals, we will fight. No justice means no peace.

Lee thereafter pleaded guilty to the arson charge. He committed felony murder in the process of the arson. Federal sentencing guidelines strongly suggested that a sentence of 20 years was appropriate, but the prosecutor argued for 12. Alpha News posted the prosecutor’s 13-page sentencing memo online here. At page 3 the prosecutor included two video screenshots of Lee in action.

Reasonable minds can disagree about the appropriate sentence. However, the prosecutor’s rationale for leniency is, shall we say, troubling (emphasis added, citation omitted):

The Guidelines state that departure below this range is not ordinarily appropriate. However this is an extraordinary case. The United States therefore seeks a downward variance, and a sentence of 144 months.

Mr. Lee’s motive for setting the fire is a foremost issue. Mr. Lee credibly states that he was in the streets to protest unlawful police violence against black men, and there is no basis to disbelieve this statement. Mr. Lee, appropriately, acknowledges that he “could have demonstrated in a different way,” but that he was “caught up in the fury of the mob after living as a black man watching his peers suffer at the hands of police.” As anyone watching the news world-wide knows, many other people in Minnesota were similarly caught up. There appear to have been many people in those days looking only to exploit the chaos and disorder in the interests of personal gain or random violence. There appear also to have been many people who felt angry, frustrated, and disenfranchised, and who were attempting, in many cases in an unacceptably reckless and dangerous manner, to give voice to those feelings. Mr. Lee appears to be squarely in this latter category. And even the great American advocate for non-violence and social justice, Dr. Martin Luther King, Jr., stated in an interview with CBC’s Mike Wallace in 1966 that “we’ve got to see that a riot is the language of the unheard.” Lily Rothman, What Martin Luther King Jr Really Thought About Riots, Time Magazine (2015), https://time.com/3838515.

In light of these circumstances, the analysis of the Guidelines does not appear appropriate.

On January 14 Judge Wilhelmina Wright sentenced Lee to 10 years, half the sentence suggested by the sentencing guidelines. The Star Tribune covered the sentencing here, but the Star Tribune reporter does not appear to have attended the sentencing hearing. His story includes none of Judge Wright’s comments. By contrast, Erica Cutts quoted Judge Wright in her Rochester Post Bulletin story:

“You are more than the person who celebrated your actions on social media as if there was anything worth celebrating. You are more than the person that destroyed that business by fire,” Wright said. “You are more than the person who set that fire that killed a man.”

“And no matter how upset you may have been and you may currently be, you are alive today. You have a future,” she said. “The victim of that fire does not. So while there are no excuses for your actions on May 28, 2020, you have a chance to move forward and live a productive life. You have a chance to move forward and contribute to a better life for yourself, to a better life for those that you love and to a better life for others. I hope that you use your prison term to address the struggles that you have, Mr. Lee, and to commit to treating and working through your depression, your anxiety, your PTSD and I hope that you also realize how your actions impact others.”

I wrote warmly about Judge Wright when she was confirmed in 2016. I know her (slightly) and like her. I stand by everything I wrote about her in 2016.

Judge Wright nevertheless appears to have bought some part of the prosecutor’s all-in-a-good-cause rationale. It is difficult to imagine any such slack being cut for defendants charged in the January 6 riots, regardless of their human potential or their depression, anxiety, or PTSD. I find Judge Wright’s apparent buy-in to the prosecutor’s apologetics troubling too.

UPDATE: I have lost out to the crush of news again tonight. FOX News has given me the night off and suggested they may invite me back next week.

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