The higher court declined to consider whether a tenuous precedent applies, so third-degree charges may be added in the midst of jury selection.
MINNEAPOLIS (CN) — The Minnesota Supreme Court has passed on an appeal in the case against fired Minneapolis police officer Derek Chauvin for the death of George Floyd, putting the possibility of a third-degree murder charge firmly back on the table as jury selection approaches a midpoint.
The court issued a decision late Wednesday afternoon denying Chauvin’s petition for further review of a Minnesota Court of Appeals decision which required Hennepin County Judge Peter Cahill to consider reinstating a third-degree murder charge against the former officer. Cahill had initially declined to reinstate the charge after the state argued that another Court of Appeals decision, issued late in January, made it an appropriate charge.
The decision may clear up still another appellate question hanging over the case. Chauvin’s petition created a dispute over whether Cahill had jurisdiction to continue with jury selection and other important matters while the Supreme Court considered review of the petition.
Prosecutors argued he did not have jurisdiction, but Cahill disagreed, opting to go forward with jury selection unless told otherwise. At the end of proceedings Wednesday, Cahill told the parties they would discuss the matter first thing Thursday morning.
Chauvin is currently facing second-degree murder and manslaughter charges. At the time of his arrest in late May he was charged with third-degree murder and manslaughter, and Minnesota Attorney General Keith Ellison announced a second-degree charge when his office joined the case’s prosecution early in June.
Cahill dismissed the third-degree charge at an early hearing based on Minnesota Supreme Court precedent requiring the “reckless” conduct involved in a third-degree murder charge to be dangerous to more than one person.
The Minnesota Court of Appeals penned a decision challenging that standard early this year in another case involving a Minneapolis police officer in State v. Noor.
That decision spawned a flurry of activity in the Chauvin case. Assistant Attorney General Matthew Frank, who is leading the prosecution, requested permission to add the third-degree charge quickly after the Noor decision. Cahill denied it, finding that since the Noor decision would soon be appealed to the Supreme Court and went against well-established precedent, he was not yet bound by it.
Frank appealed that decision, too, and the Court of Appeals found that Cahill did indeed have to follow the Noor precedent. Chauvin’s attorney Eric Nelson sought to appeal that to the Supreme Court, leading to the jurisdictional question and today’s order.
Ellison made muted celebration of the decision in a brief statement.
“The Supreme Court was right to decline Mr. Chauvin’s petition for review. The Court of Appeals ruled correctly; therefore, there was no need for the Supreme Court to intervene,” he said. “We believe the charge of 3rd-degree murder is fair and appropriate. We look forward to putting it before the jury, along with charges of 2nd-degree unintentional murder and 2nd-degree manslaughter.”
Mitchell Hamline School of Law professor Ted Sampsell-Jones commented on the speed of the denial.
“There are some formal procedural matters that still need to be addressed, but as a practical matter, this ends the appeal,” he wrote in an email. “The pending appeal had created a real possibility of delay — and indeed the state has filed a writ of prohibition requesting a delay while the appeal was pending. But now that the appeal has ended, the state’s request is moot, and everything can move ahead.”
He also noted that the decision, in affirming Noor’s applicability. did all but reinstate the third-degree charge and speculated that Cahill would soon do so himself.
All the latest appellate wrangling took place against the background of jury selection, which started Tuesday and has continued apace. Cahill announced early on that he would seek a jury panel of 12, plus two alternates. Five of those jurors have now been selected — three on Tuesday and two more on Wednesday. Over thirty jurors have so far been considered. 16 of those were struck by mutual agreement, but only a few have been challenged for cause.
In a case where almost every prospective juror had some opinion about Floyd, Chauvin or the riots that rocked Minneapolis last summer, jury selection focused heavily not on whether jurors had strong opinions but whether they could put them aside and decide Chauvin’s fate based on evidence presented in court. Sampsell-Jones noted that this was a tricky line to walk for Nelson.
“So far, most of the jurors that have been selected seem favorably inclined toward the prosecution,” Sampsell-Jones wrote. “Nelson has already burned several peremptories, and he has hard tactical decisions to make — do you use a peremptory on someone who seems a little biased against you, or do you hold on to it in case someone worse comes up in coming day[s]?”
Nelson did not respond to a request for comment.
Jury selection is set to begin again Thursday morning, along with discussion of the third-degree charge. With just under half the jury selected, the court has plenty of time to make Cahill’s planned date for opening arguments on March 29.