An appeals court considering whether to reinstate a third-degree murder charge against the former Minneapolis police officer accused of killing George Floyd reacted with skepticism Monday to his attorney's arguments for keeping the charge out.
Jury selection is scheduled to begin next Monday in Derek Chauvin s trial on charges of second-degree murder and manslaughter. The trial judge dismissed a third-degree murder count last October. But prosecutors asked the Minnesota Court of Appeals to reinstate the charge in light of its decision last month to uphold a third-degree murder conviction against former Minneapolis officer Mohamed Noor for the 2017 shooting death of Justine Ruszczyk Damond, an unarmed Australian woman who had called 911 to report a possible sexual assault.
A three-judge panel that heard oral arguments Monday said it would issue an expedited decision as soon as possible given the looming trial date.
Legal experts say reinstating the lesser count could increase the prosecution’s odds of getting a murder conviction in what will be one of Minnesota’s highest-profile trials ever. Floyd, who was Black, died May 25 after Chauvin, who was white, pressed his knee on Floyd’s neck while he was handcuffed and pleading that he couldn’t breathe. Civil unrest after Floyd’s death spiraled into violence locally. Protests spread around the world and forced a painful reckoning on race in the U.S.
“Without action from this court, a landmark criminal case, one of the most important in our nation’s history, will take place with a major part of the case — third-degree murder — missing. Nowhere in it whatsoever,” prosecutor Neal Katyal told the appeals court. “That can’t possibly be the law.”
The appeals judges grilled defense attorney Eric Nelson over his contention that they should ignore their own precedent simply because Noor has appealed to the Minnesota Supreme Court, so the law over what constitutes third-degree murder in Minnesota hasn't reached a final resolution. Nelson argued that Hennepin County District Judge Peter Cahill got it right last month when he declined to reinstate the charge despite the Noor ruling.
“When the Supreme Court does grant review of our cases, it typically does not vacate our decision or issue any order limiting our decision,” Appeals Judge Michelle Larkin said.
Cahill ruled last October that a third-degree murder charge under Minnesota law requires proof that someone’s conduct was “eminently dangerous to others,” not just to Floyd. Cahill said there was no evidence that Chauvin’s actions were dangerous to anyone else and threw out the charge.
But the Court of Appeals rejected similar legal reasoning in Noor's case, ruling that a third-degree murder conviction can be sustained even if the action that caused a death was directed at just one person. Noor last week appealed that ruling to the Minnesota Supreme Court. The high court has not yet said whether it will hear the case.
With opening arguments in Chauvin's case just four weeks away, Katyal told the judges that the trial court must follow the Court of Appeals' precedent from the Noor case unless and until the state Supreme Court reverses it.
Nelson countered that the ruling in Noor's case won't have the full force of law until the process runs its course at the Supreme Court, which could take several months or even longer. He also said Chauvin's defense team has has been preparing for months on the assumption that it wouldn’t have to defend him against a third-degree murder charge, so reinstating it would violate his constitutional rights to a fair trial and to present a complete defense.
Another thorny issue is what should happen if Chauvin is convicted of third-degree murder but the Minnesota Supreme Court later throws out the precedent that the appeals court set in the Noor case. Nelson said Chauvin could appeal his conviction if the Noor ruling is overturned, “but he would have to do it from the confines of a prison cell.”
Three other former officers — Thomas Lane, J. Kueng and Tou Thao — are charged with aiding and abetting second-degree murder and manslaughter. They're scheduled for trial in August. Prosecutors have asked the Court of Appeals to reinstate third-degree murder charges against them, too, but that question will be resolved later.