Third-degree murder count against ex-officer in Floyd death could be reinstated

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Derek Chauvin mugshot (Credit: Hennepin County Sheriff’s Office)

MINNEAPOLIS (AP) — The Minnesota Court of Appeals on Friday ordered a judge to reconsider adding a third-degree murder charge against a former Minneapolis police officer charged in George Floyd’s death, handing a potential victory to prosecutors, but setting up a possible delay to a trial set to start next week.

A three-judge panel said Hennepin County District Judge Peter Cahill erred last fall when he rejected a prosecution motion to reinstate the third-degree murder charge against Derek Chauvin. The panel said Cahill should have followed the precedent set by the appeals court last month when it affirmed the third-degree murder conviction of former officer Mohamed Noor in the 2017 shooting death of Justine Ruszczyk Damond. The unarmed Australian woman had called 911 to report a possible sexual assault.

The appeals court sent the case back to Cahill for a ruling consistent with its ruling in the Noor case, giving the judge some leeway to consider other arguments that the defense might make against reinstating the charge.

“This court’s precedential opinion in Noor became binding authority on the date it was filed. The district court therefore erred by concluding that it was not bound by the principles of law set forth in Noor and by denying the state’s motion to reinstate the charge of third-degree murder on that basis,” the appeals court wrote.

It was not immediately clear if Friday’s ruling would force a delay in jury selection for Chauvin’s case, which is due to start Monday. He’s currently charged with second-degree murder and manslaughter. Prosecutors did not immediately return a message seeking comment on whether they would seek a delay. Chauvin’s attorney had no comment.

Chauvin has the option of appealing the ruling to the Minnesota Supreme Court, which would force Cahill to delay the trial, said Ted Sampsell-Jones, a criminal law expert at the Mitchell Hamline School of Law. But if Chauvin decides not to appeal, the professor added, “then Judge Cahill will almost certainly reinstate the third-degree charge.”

And if Chauvin decides not to appeal, Sampsell-Jones said, Cahill could still begin jury selection Monday, then decide in the next three weeks — before opening arguments — whether to reinstate the charge.

A reinstated third-degree murder count could increase the prosecution’s odds of getting a murder conviction.

“We believe the Court of Appeals decided this matter correctly,” Minnesota Attorney General Keith Ellison said in a 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. We look forward to presenting all charges to the jury in Hennepin County.”

Floyd, who was Black, died May 25 after Chauvin, who is white, pressed his knee on Floyd’s neck while he was handcuffed and pleading that he couldn’t breathe. In the wake of his death, civil unrest spiraled into violence locally. Protests spread worldwide and forced a painful reckoning on racial justice in the U.S.

With tensions growing over the looming trial, authorities have already surrounded the courthouse and nearby buildings in downtown Minneapolis with tall barriers of chain-link fencing and razor wire in case protests anticipated before, during and after the trial turn violent.

Cahill ruled last October that third-degree murder under Minnesota law requires proof that someone’s conduct was “eminently dangerous to others,” plural, not just to Floyd. Cahill said there was no evidence that Chauvin endangered 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 victim’s death was directed at just one person.

The appeals court rejected the argument by Chauvin’s attorney that the Noor ruling shouldn’t have the force of law unless and until it’s affirmed by the Minnesota Supreme Court, which will hear oral arguments in Noor’s appeal in June.

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 want to add charges of aiding and abetting third-degree murder against them, but that question will be resolved later.

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