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Judge creates path for the officer at the center of George Floyd case to face third-degree murder charges

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Chao Xiong

Star Tribune

The Minnesota Court of Appeals ruled Friday that a trial judge was wrong to refuse prosecutors’ request to add third-degree murder against former Minneapolis police officer Derek Chauvin, who is scheduled to go on trial Monday in the killing of George Floyd.

The court ruled that its Feb. 1 decision in an unrelated third-degree murder case set precedent that should apply to Chauvin’s case. The court overturned a ruling by Hennepin County District Judge Peter Cahill that rejected charging Chauvin with the count, and sent the prosecution’s request back to him for reconsideration.

“A precedential opinion of this court has immediate precedential effect,” wrote Court of Appeals Judge Michelle Larkin. ” … Although parties, attorneys, district court judges, and the public may disagree with this court’s precedential decisions, district courts are bound to follow them. If it were otherwise, there would be uncertainty in the law and the integrity of our judicial system would be undermined.”

The ruling comes as Chauvin prepares to go on trial next week on second-degree murder and manslaughter charges, and four days after the Court of Appeals heard oral arguments from prosecutors and Chauvin’s attorney, Eric Nelson, on the issue. It’s unclear what impact, if any, the ruling could have on the trial’s start date, although legal scholars said a delay is possible.

Cahill previously ruled that he did not have to reinstate the charge because the Court of Appeals’ February decision was not yet precedent due to a possible review of by the Minnesota Supreme Court.

“My head is spinning,” said Richard Frase, University of Minnesota law professor and co-director of the Robina Institute for Criminal Justice. “I’ve been a lawyer for 50 years and a Minnesota lawyer for 44 years and I’ve never seen a situation like this.”

Veteran attorneys and legal scholars have said adding third-degree murder to the case could be a strategic move by Attorney General Keith Ellison’s office, which is leading the prosecution, to give jurors more opportunities to convict Chauvin. The charge could be viewed by jurors as a middle ground, and also allows the prosecution to present multiple theories of its case based on the different legal elements that must be met to convict on the respective charges, some said.

Reinstating the charge could also serve as a bargaining chip in plea negotiations, Frase said.

“We believe the Court of Appeals decided this matter correctly,” Ellison said in a written statement. “We believe the charge of 3rd-degree murder, in addition to manslaughter and felony murder, reflects the gravity of the allegations against Mr. Chauvin. Adding this charge is an important step forward in the path toward justice.”

Nelson declined to comment.

Frase and Joseph Daly, emeritus professor at Mitchell Hamline School of Law, said Nelson has some options: He could ask the Minnesota Supreme Court to review Friday’s ruling, or, in the event that the charge is reinstated, he could ask Cahill to postpone Chauvin’s trial on the grounds that his client’s constitutional rights to due process will be violated if he doesn’t receive more time to prepare for the new count.

“Everybody wants to get this right,” Frase said. “I would expect the Supreme Court would do something about this … to let the trial judge know what to do.”

According to Daly, Cahill could decide whether to reinstate third-degree murder based on prior court filings from the prosecution and defense. He could also call a hearing on the matter over the weekend to hear arguments from both sides, or, address the matter Monday before jury selection begins at 9 a.m.

Cahill is likely interested in hearing new arguments from Nelson, Daly said, because of the last two lines of the Court of Appeals’ ruling: “On remand, the district court has discretion to consider any additional arguments Chauvin might raise in opposition to the state’s motion. But the district court’s decision must be consistent with this opinion.”

“I certainly would want to hear any additional arguments that Chauvin might raise,” Daly said. “Eric Nelson can make a very strong argument that it does violate due process of law.”

Chauvin had been charged with third-degree murder, but Cahill dropped the count in October, writing that Chauvin and his three colleagues had targeted Floyd and no one else.

According to state statute, third-degree murder applies when a defendant kills someone “by perpetrating an act eminently dangerous to others and evincing a depraved mind.” Some veteran attorneys have said it would apply, for instance, to someone shooting indiscriminately into a moving train. It is commonly used to charge drug dealers in overdose deaths. There’s debate over whether it only applies when multiple people are put at risk, or, whether it can be used when a single person is targeted.

The Court of Appeals’ Feb. 1 decision upheld former Minneapolis police officer Mohamed Noor’s third-degree murder conviction in the 2017 fatal shooting of Justine Ruszczyk Damond. The court ruled that the charge can apply when a single person is targeted, prompting prosecutors to ask Cahill in February to reinstate the count against Chauvin and add it for the first time against his co-defendants.

Cahill denied the request, stating his opposition to the Court of Appeals’ interpretation of the statute. He also wrote that the ruling wouldn’t become precedent until after a deadline for Noor’s attorneys to petition the state Supreme Court for a review, a decision by the high court to reject a review or the high court’s review and final decision on the issue. Noor’s attorney, Thomas Plunkett, later petitioned for a review, which was granted Monday. The state Supreme Court will hear arguments in Noor’s case in June.

Prosecutors then asked the Court of Appeals to overturn Cahill’s ruling. Prosecutors also want to add aiding and abetting third-degree murder against Chauvin’s former colleagues — J. Alexander Kueng, Thomas Lane and Tou Thao — who are charged with aiding and abetting second-degree murder and manslaughter in Floyd’s death. They are scheduled to be tried in one trial Aug. 23. The Court of Appeals has said it will schedule oral arguments on that request at a future date. All four defendants, who were fired, are out on bond.

Daly said in the event that the charge is reinstated against Chauvin, it could be difficult to convince Cahill to delay the trial since the charge had been part of Chauvin’s case for several months, and given the extensive measures put in place for next week’s trial. Barricades fortified with fencing and barbed wire have been set up in downtown Minneapolis, police and the Minnesota National Guard have been put on alert, and workers in the courthouse — which also serves as offices for county government — were cleared out a week early.

“I don’t think Eric Nelson will need more time,” Daly said. “It’s also due process for the state of Minnesota, and the state of Minnesota has had to bend over backward to deal with this case in a way that protects Chauvin’s rights and the state of Minnesota — the people.”

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(Star Tribune staff writer Rochelle Olson contributed to this report.)

©2021 StarTribune. Visit at startribune.com. Distributed by Tribune Content Agency, LLC.

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