In prosecution bid to add charges in George Floyd death, Derek Chauvin's attorney faces questions, skepticism before Court of Appeals

The same day Minnesota Court of Appeals judges questioned arguments that Derek Chauvin shouldn't be charged with third-degree murder, the state Supreme Court agreed to review the conviction of another ex-Minneapolis police officer that could potentially affect next week's trial in the death of George Floyd.

Shortly after prosecutors asked the state Court of Appeals to reinstate the charge against Chauvin, the state Supreme Court agreed to hear Mohamed Noor's appeal of his third-degree murder conviction in the 2017 shooting death of Justine Ruszczyk Damond. Oral arguments are scheduled for June.

In Chauvin's case, prosecutors are racing the clock to reinstate the third-degree murder charge against the ex-officer, who already faces second-degree murder and manslaughter charges. In Noor's case, he is seeking to have the conviction dismissed and be sentenced on the lesser conviction of manslaughter.

At issue is whether third-degree murder can be applied to someone whose actions were directed at a specific individual and whether the Court of Appeals' ruling in Noor's case set a precedent that should be followed in Chauvin's case. Historically, the charge has been applied to drug dealers in overdose deaths.

Chauvin is accused of killing Floyd by kneeling on his neck for more than nine minutes last May. His trial is set to begin Monday before Hennepin County District Judge Peter Cahill. Noor was convicted in Hennepin County in 2019 of fatally shooting Damond, an Australian woman who had called 911 about a possible sexual assault behind her home. The cases of the two former Minneapolis police officers are not otherwise connected.

At midday Monday, a three-judge panel of the state Court of Appeals heard arguments from Special Attorney for the State Neal Katyal and Chauvin's attorney, Eric Nelson regarding the murder charge. Prosecutors want the appellate court to reinstate the charge that Cahill tossed out then declined to reinstate last month.

The appellate judges seemed skeptical of Nelson's position. In a virtual hearing watched by more than 500 people, Judge Michelle Larkin told the lawyers to focus on the question of whether Cahill was bound by the Feb. 1 appellate ruling on Noor. Larkin wrote the 2-1 decision that upheld Noor's third-degree murder conviction.

Katyal argued for reinstatement, saying the Noor decision became precedent as soon as it became public.

When Nelson's turn came, he argued that the Noor ruling was being appealed and wasn't yet precedent. But the judges interrupted him often and peppered him with questions.

Larkin, who didn't yet know the Supreme Court had agreed to take the case, noted that the higher court could take a year to rule on the case.

"That means people could be waiting 12-plus months for final judgment and this court's precedential opinion in the meantime would have no affect according to your position … that's your argument?" Larkin asked Nelson.

Larkin asked if Nelson believed Minnesota prosecutors should stop charging third-degree murder in other cases until the state Supreme Court resolves the debate by upholding or overturning it. Nelson said that would be an "extremely rare" scenario but "technically" possible.

Katyal argued that Cahill's refusal to reinstate third-degree murder was "wrong on its merits."

At the end of the session, Larkin said the court would issue a ruling "as soon as possible" given Chauvin's trial next week.

The language of the third-degree murder statute has caused many to debate whether the charge applies only when a defendant's actions put multiple people instead of a specific individual at risk and results in a death, or, whether it can apply when the defendant directs their attention at a single person.

According to state statute, third-degree murder applies when a defendant kills someone "by perpetrating an act eminently dangerous to others and evincing a depraved mind." Veteran attorneys have said it would apply, for instance, to someone shooting indiscriminately into a moving train. It is commonly used to charge drug dealers in overdose deaths.

Prosecutors also want to add aiding and abetting third-degree murder against Chauvin's former colleagues — J. Alexander Kueng, Thomas Lane and Tou Thao — who are charged with aiding and abetting second-degree murder and manslaughter. They are scheduled to be tried in one trial Aug. 23.

Veteran attorneys and legal scholars have said adding third-degree murder to the cases could be a strategic move by prosecutors to give jurors more opportunities to convict the former officers, who were all fired and who are all free on bond.

In 2019, Noor became the first on-duty Minneapolis police officer convicted of murder when the third-degree charge was applied to him for "perpetuating an act eminently dangerous to others and evincing a depraved mind."

His lawyer, Thomas Plunkett, who also represents Kueng, argued that the depraved mind element of third-degree murder wasn't met because Noor was carrying out his duties as an officer, acted in a split second and directed his actions at a specific person out of fear that his partner's life was in danger from an ambush.

It's unclear whether adding a third-degree murder charge could delay Chauvin's trial. Prosecutors have repeatedly pushed for a later trial, but Nelson has not. If, however, a new charge was added, he would be in position to ask for a delay.

Retired Hennepin County Judge Kevin Burke said it's typical for the activity to increase as the trial approaches. "Except for the fact that this case has media coverage on steroids, it's not that unusual to have intense last-minute jockeying," Burke said, adding that he expects that to continue through the week, including an appeal by the losing side on the issue of reinstating the third-degree charge.

But he still expects jury selection to begin Monday. "My own experience would be it's not going to get better and we could continue this to whenever and right before whenever we'd have motions right up until trial," he said. "It's kind of like a root canal, you've just got to get going."

Burke, however, wasn't convinced the appellate court would reinstate the charge. "This is a really close call in which reasonable minds can disagree about what to do," he said.

Given the Supreme Court's decision to hear the Noor case, defense attorney Ryan Pacyga said the Noor third-degree murder ruling is now "flimsy precedent" because the higher court will set the standard with its ruling.

He also expected the trial to proceed before the higher court rules. "There's no way this judge is going to say, 'let's wait another year' " to hold the trial, Pacyga said.

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