Chauvin Co-Defendants Fight to Get Charges Dropped

An attorney for three officers charged for their role in George Floyd’s deadly arrest argues aiding and abetting third-degree murder was impossible in this situation.

From left: Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thao. (Hennepin County Sheriff’s Office via AP, File)

ST. PAUL, Minn. (CN) — An attorney for the three former Minneapolis police officers charged as accomplices to Derek Chauvin’s murder of George Floyd argued before the Minnesota Court of Appeals on Thursday that the state’s charges against them for aiding and abetting third-degree murder were inappropriate. 

At issue is Hennepin County Judge Peter Cahill’s October dismissal of a third-degree murder charge against Chauvin, which was eventually reinstated at the appellate court’s direction in March. That ruling by the Court of Appeals came after Cahill severed Chauvin’s case from that of fellow officers Tou Thao, Thomas Lane and J. Alexander Kueng, and Thursday’s arguments concerned how it impacts prosecutors’ aiding-and-abetting charges against them. 

Attorney Deborah Ellis, representing the three officers, raised what Judge Renee Worke called a novel theory: that because Chauvin was convicted under the “depraved mind” element of Minnesota’s third-degree murder statute, aiding and abetting that crime was a legal impossibility. 

“While an accomplice can aid a negligent act or even a reckless act, it takes more than that to aid and abet a third-degree depraved mind, because you would have to intentionally aid — indifference, really, it’s an irrational frame of mind of somebody else,” Ellis said. 

Former Deputy Solicitor General Neal Katyal, who has worked with the Minnesota Attorney General’s Office to prosecute Chauvin’s case along with Thao, Kueng and Lane’s, said that the argument didn’t belong before the Court of Appeals at this early stage and that even if it did, Ellis’ theory was meritless.

“We just don’t think that this has precedent, inside Minnesota or outside of Minnesota, Katyal said. 

He also pointed out that Ellis’ argument had never been raised to Cahill.

“This court is an error-correction court, and the Court of Appeals can only correct errors that appear in the lower court’s decision. And here, that impossibility argument that they point to is not found in the lower court’s decision,” Katyal said. 

The three-judge panel hammered Ellis on that subject, with Judge Theodora Gaïtas asking her about whether the officers had ever responded to the state’s motion to add third-degree aiding-and-abetting charges. Ellis said she couldn’t speak to that. 

Judge Matthew Johnson asked whether Ellis agreed that the court’s decision in State v. Chauvin, which led to the reinstatement of Chauvin’s third-degree murder charge, applied. Ellis said she did, but that the circumstances here were different.

“If the state is saying ‘well, we intend to charge them as principals,’ then I think Chauvin does apply, because my issue… is moot on that point,” she said, but in this case it wasn’t. 

Katyal said that didn’t matter. “This appeal concerns the same facts, the same procedural posture, and the very same opinion below,” he said. 

The arguments were brief, clocking in at just under 24 minutes in total. The court is expected to issue a ruling within 90 days. That gives the parties plenty of time before the officers’ recently rescheduled trial in March 2022. 

Chauvin was convicted in April of second- and third-degree murder and second-degree manslaughter for Floyd’s widely publicized death in May 2021. He, Kueng, Lane and Thao now also face federal civil rights charges for that incident, prompting Cahill’s delay of the trio’s trial.

Chauvin also faces criminal tax-evasion charges, which were put on hold in January until the conclusion of his murder trial. Proceedings are set to begin again June 30, although it’s unclear whether the federal charges will upset that timeline as well.

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