MINNEAPOLIS (CN) — The former Minneapolis police officer facing trial over the death of George Floyd must once again contend with a third-degree murder charge after a month of debate in Minnesota’s appellate courts.
Hennepin County Judge Peter Cahill reinstated the third-degree charge against fired officer Derek Chauvin first thing Thursday morning after a ruling from the Minnesota Court of Appeals directed him to reconsider the charge. The state high court declined late Wednesday to take up the case.
He originally dismissed the charge for lack of probable cause in October, finding that it didn’t comply with Minnesota Supreme Court precedent dating back to 1896 which requires third-degree murder to involve dangerous conduct directed at more than one person.
Chauvin now faces charges of second-degree murder, third-degree murder and second-degree manslaughter for Floyd’s May 2020 death in police custody. It’s unclear how the addition of the third-degree charge in Chauvin’s case will impact the other three officers involved in Floyd’s fatal arrest. They all face aiding-and-abetting charges for second-degree murder, but the state’s original motion, filed before Cahill split the other officers' case from Chauvin’s, also sought third-degree murder charges against each officer.
Mitchell Hamline School of Law professor Ted Sampsell-Jones said the decision was “a foregone conclusion in light of the recent rulings from the Court of Appeals.” He noted that the charge gave prosecutors an extra option should a jury hesitate to agree on second-degree murder, and that “the recommended guidelines sentence for third-degree is actually the same as second-degree, so getting a third-degree conviction would be a good result for the prosecution.”
As to the other officers, he speculated that they too will likely face third-degree charges when the time comes for Cahill to address the issue.
Chauvin’s attorney Eric Nelson of Halberg Criminal Defense still raised a few challenges to the charge in court on Thursday, arguing that the Court of Appeals’ recent decision in State v. Noor, which found that third-degree murder could apply to actions taken against a single person, threatened to criminalize his client’s actions after the fact. He also sought to differentiate Chauvin’s case from that of fellow former Minneapolis police officer Mohamed Noor, whose third-degree murder conviction in the 2017 shooting death of Justine Ruszczyk Damond prompted the decision.
In Noor’s case, he pointed out, the third-degree charge was the highest available option. That was different, he argued, from the lesser-included charge prosecutors sought to make it in Chauvin’s case.
“Ultimately, looking at the Noor line of cases, where there’s a conviction, it’s a much different standard than the lesser-included standard,” Nelson said.
That aside, he continued, the reckless conduct Noor was sentenced for was different from what his client stands accused of.
“What I understand Noor to stand for is the single-person rule… but in the Noor case, Mr. Noor shot his gun, across his partner’s chest, towards a silhouette that could have been anyone or anything,” he added. “It happened to be a single person that was there, and I think that was significantly different, factually, than what happened in this particular case.”
Former Deputy Solicitor General Neal Katyal, who has assisted prosecutors with various parts of the case, argued against Nelson's points. Katyal noted that Cahill had already said the Noor decision would apply if the Court of Appeals found it was precedential, and added that ex-post-facto arguments should apply not to case law but only to legislatures.
He also said that even though the one-person standard had been predominant for over 100 years in Minnesota, it wasn’t clearly settled law. He pointed to a 2000 holding by the Court of Appeals to the same effect as an example.
“Even if it were murky, that’s not an ex-post-facto violation…. The idea that Officer Chauvin would have been surprised by it … would be pretty ludicrous,” he said. “Even if you think there was any doubt in Minnesota, it has been the law in many, many places.”
For his part, Cahill took issue with some of the Court of Appeals’ findings but not its ruling. The claim that the plain language of procedural rules rendered Noor precedential, he said, rubbed him wrong.
“That implies that this court disregarded plain language in the rules, or at worst, is too lazy to look up the rules. And that is not the case,” the judge said.
Rather than plain language stating that Court of Appeals rulings applied immediately after issue, he said, he found silence on that matter. That said, he conceded the appellate court has jurisdiction to determine when its holdings apply.
With Cahill’s ruling out of the way, Assistant Attorney General Matthew Frank asked to clear up one more question. Prosecutors questioned earlier in jury selection whether or not Cahill had jurisdiction to proceed while Nelson sought review of the Court of Appeals’ third-degree murder determination by the Minnesota Supreme Court. Cahill opted to proceed anyway unless prompted otherwise, and the Supreme Court’s Wednesday night decision not to review the case threw the ball definitively back into Cahill’s literal and proverbial court. With jurisdiction settled, Frank requested a record affirming all of the decisions made in the interim.
Cahill stopped short of making that record exactly, instead opting to reaffirm his agreement with the Court of Appeals before returning to jury selection.
“I’ll make one more record. Lest the COA think that I’m intensely incorrigible, I did agree with some of their analysis in this case and I ultimately did agree with their final ruling, because I think they have the inherent judicial authority," he said. "But even if I had not agreed … I acknowledge that it was a precedential opinion on the law of the case.”
In a brief statement issued about an hour after the ruling, Minnesota Attorney General Keith Ellison praised the decision.
“The charge of third-degree murder, in addition to manslaughter and felony murder, reflects the gravity of the allegations against Mr. Chauvin,” he said. “We look forward to presenting all three charges to the jury.”
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