Court of Appeals will hear arguments to add third-degree murder in George Floyd case

Chao Xiong, Star Tribune
·5 min read

The Minnesota Court of Appeals will hear arguments about adding third-degree murder charges against the four former Minneapolis police officers charged in George Floyd's death a week before one of them is set to be tried.

The Court of Appeals on Tuesday scheduled a virtual hearing for March 1 at 1 p.m. to discuss the matter. Derek Chauvin, who knelt on Floyd's neck for more than nine minutes, is scheduled to be tried March 8 on charges of second-degree murder and manslaughter.

Prosecutors want to reinstate a count of third-degree murder against Chauvin and to add aiding and abetting third-degree murder for the first time against J. Alexander Kueng, Thomas Lane and Tou Thao.

Chauvin had been charged with third-degree murder, but Hennepin County District Judge Peter Cahill dismissed that count in October because the charge typically applies when a suspect's actions put multiple people at risk and are not targeted at a single person.

The issue resurfaced after the Court of Appeals issued a 2-1 decision Feb. 1 upholding a third-degree murder conviction against former Minneapolis officer Mohamed Noor in the 2017 fatal shooting of Justine Ruszczyk Damond. The Court of Appeals wrote that third-degree murder can apply when a suspect's actions apply to a specific person and don't put others at risk.

That prompted prosecutors to file a motion Feb. 4 asking Cahill to reinstate the charge against Chauvin and to add it against the other three defendants, who are charged with aiding and abetting second-degree murder and manslaughter. When Cahill denied the motion, noting that the defendants' actions were directed at one person, prosecutors asked the Court of Appeals to intervene.

Cahill failed to follow case law and court rules when he rejected the motion, prosecutors argued in a memorandum filed to the Court of Appeals Monday arguing their case. Attorney General Keith Ellison's office, which is leading the prosecution with assistance from the Hennepin County Attorney's Office, is asking the Court of Appeals to apply its own interpretation of third-degree murder to the case instead of Cahill's interpretation.

"The District Court's decision was erroneous and a clear abuse of discretion…," wrote Assistant Attorney General Matthew Frank and Special Attorney for the State Neal Katyal. " … It is unfair … because it permits different courts to apply different rules in otherwise similar circumstances. And it threatens to undermine public faith in the judicial process and the rule of law."

Cahill was wrong to apply his own reading of the statute instead of the Court of Appeals' standard, which is binding on both courts unless it's reversed by the Minnesota Supreme Court, prosecutors wrote.

The judge also misinterpreted case law in rejecting the prosecution's motion, they added.

"The District Court's contrary conclusion — that district courts need not follow this Court's decisions until the Supreme Court denies review — is inconsistent with longstanding practice and foundational … principles," prosecutors wrote. "It would create chaos, enabling district courts to eschew any number of this Court's precedential decisions based on their preferred reading of the law."

According to the memorandum: The district court and Court of Appeals are bound by published opinions from the Court of Appeals, according to the Minnesota Rules of Civil Appellate Procedure.

Chauvin's attorney, Eric Nelson, previously argued in a court filing that the Court of Appeals decision is not yet precedent because of a window of time that allows Noor's attorneys to ask the state Supreme Court to review the ruling. Nelson asked the Court of Appeals to dismiss the prosecution's request for intervention. The court on Thursday denied Nelson's request.

Noor's attorney, Thomas Plunkett, has said he will ask for the state Supreme Court's review. Plunkett also represents Kueng. Prosecutors said the Court of Appeals' ruling in Noor's case can apply despite the possibility of state Supreme Court intervention.

" … In case after case, this Court has followed its own prior published opinions even where the Minnesota Supreme Court might review — or had actually granted review — of the earlier decision," prosecutors argued. "This Court's consistent practice mirrors the prevailing norm across jurisdictions and accords with bedrock principles …"

The third-degree murder statute is not written to apply only when a suspect's actions put others at risk and when there is no specific target, prosecutors wrote, adding that previous state Supreme Court rulings support their stance.

In Floyd's case, the defendants were arresting him for allegedly using a fake $20 bill when they pinned him stomach-down in the street, with Chauvin kneeling on his neck for more than nine minutes.

Third-degree murder applies when someone "without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life," according to state statute. It is commonly used to charge drug dealers in overdose deaths; veteran attorneys have said it would apply, for instance, to someone shooting indiscriminately into a moving train.

"Nowhere does the plain text of this statute say that a defendant's acts must be directed at more than one person, or, that a defendant cannot be convicted if his acts were directed at just a single person," the memorandum said. "The words 'without intent to effect the death of any person' contain no such limitation on their face."

Prosecutors argued that it would critically impact their cases if they are unable to add third-degree murder.

"It is a bedrock principle of judicial review that a lower court must follow a higher court's authoritative interpretation of the law," prosecutors wrote. "In this case, however, the District Court did not adhere to that principle."

Kueng, Lane and Thao are scheduled to be tried in one trial starting Aug. 23. All four defendants, who were fired, are out on bond.

Chao Xiong • 612-270-4708

Twitter: @ChaoStrib