Chauvin trial disrupted by third-degree murder issue

Jury selection in the trial of former Minneapolis police officer Derek Chauvin, who is charged with killing George Floyd, was postponed until Tuesday after prosecutors expressed concerns about a contested Minnesota Court of Appeals ruling that affects his case.

Hennepin County District Judge Peter Cahill and Chauvin's attorney, Eric Nelson, were prepared to begin picking jurors Monday, but Attorney General Keith Ellison's office persuaded them to delay the process until the Court of Appeals could determine whether they were allowed to move forward.

Cahill and the attorneys will resume court at 8 a.m. Tuesday to discuss outstanding legal issues, with jury selection beginning at 9 a.m.

"Unless the Court of Appeals tells me otherwise, we're going to keep moving," Cahill said before court adjourned at 2:47 p.m.

Although jury selection was halted, prosecutors and Nelson agreed to dismiss 16 prospective jurors for cause out of 50 they had reviewed so far via juror questionnaires. They did not state the reasons for the dismissals, which occurred after prospective jurors had been sent home for the day.

Prosecutors called the Court of Appeals on Monday and filed a motion with the court asking it to postpone the trial but had not heard back by the end of the day. Ellison's office wants to reinstate a charge of third-degree murder against Chauvin based on a Feb. 1 Court of Appeals ruling in the unrelated murder case of former Minneapolis police officer Mohamed Noor.

Assistant Attorney General Matthew Frank argued that Chauvin's trial should be suspended since Nelson plans to ask the Minnesota Supreme Court to review how the Noor decision applies to Chauvin's case.

"We're not trying to delay this case," Frank said. "We want to try it right, and we can only try it once."

Chauvin had been charged with third-degree murder, but Cahill dismissed the count in October.

Prosecutors asked him to reinstate the charge after the Court of Appeals ruled to uphold a third-degree murder conviction against Noor in the 2017 fatal shooting of Justine Ruszczyk Damond. When Cahill rejected the request, prosecutors asked the Court of Appeals to intervene.

The Court of Appeals ruled Friday that Cahill was wrong to deny the request and sent it back to him for reconsideration.

Nelson said Monday that he would file a petition no later than Tuesday asking the Minnesota Supreme Court to review the Court of Appeals' Friday decision.

"We're prepared to try this case," Nelson said. "It is not our intent to cause delay. However, I feel I have an ethical obligation to my client" by asking for a review.

Chauvin, dressed in a navy blue suit and tie and wearing a black mask, looked on intently while attorneys and the judge discussed the case, occasionally taking notes on a yellow legal pad.

He is charged with second-degree murder and manslaughter.

Some attorneys said adding third-degree murder to his case could be a strategic move to give jurors more opportunities to convict him, and that the count could be viewed as a middle ground.

Floyd's sister, Bridgett Floyd, sat in the back of the courtroom for part of the proceedings, her hands crossed over a purse in her lap.

Chauvin did not have a family member or supporter in the courtroom. Floyd's family and Chauvin are each limited to one person in the courtroom because of COVID-19 social distancing protocols restricting the number of people allowed inside.

Nearly 40 reporters from local, national and international news outlets worked out of a media center set up by the court in a nearby building to watch the trial, which, in an unprecedented move for Minnesota, is being livestreamed because COVID is limiting public access to the courtroom.

Frank argued that Cahill had no authority to hear any matter in Chauvin's trial, from jury selection to pending motions, while the Noor review was pending. The judge pushed back.

"It just seems that that's a bit tenuous to say it involves everything," Cahill said, adding that he believed he could address jury selection and motions while abstaining from ruling on the third-degree murder issue.

The judge noted that third-degree murder is sometimes added to a case as a "lesser included" count well after a jury has been picked and witnesses have testified.

"That's not the right way to try this case, because we want those charges now and fully present to the jury during the trial," Frank said, adding that picking a jury could be a waste of time if they're not allowed to proceed with testimony.

Nelson advocated for moving forward, noting that they could accomplish a lot in the unusually long three weeks they've allotted themselves to pick as many as 16 jurors, four of them alternates.

Frank accused the defense of leveraging the situation for a possible appeal in the event that Chauvin is convicted.

"Everything the court does is a potential appeal issue, so I'm not worried about that," Cahill said.

Cahill, who cautioned that waiting for the Supreme Court to respond to Nelson's request could delay the trial by at least 30 days, allowed Frank to seek further guidance from the Court of Appeals and recessed the morning session.

If the trial proceeds, prosecutors argued in their motion to the Court of Appeals, Chauvin is in a "Heads I win, tails you lose" scenario because he could take his chances at trial, and if convicted, can appeal by claiming that Cahill lacked jurisdiction when jury selection began.

"There is no need for this kind of uncertainty in any case, let alone a case of this magnitude," prosecutors wrote.

"The state is fully ready to go to trial, but the trial must be conducted in accordance with the rules and the law," Ellison said in a written statement Monday. "Now that Mr. Chauvin has stated his intention to appeal Friday's Court of Appeals ruling to the Minnesota Supreme Court, as is his right, the District Court does not have jurisdiction to conduct jury selection or hear and rule on other substantive matters in the trial."

Court resumed in the afternoon with the attorneys and Cahill reviewing several motions filed by the prosecution and defense.

Both sides agreed to prohibit witnesses from watching the trial before or after they testify with the exception of expert witnesses, and to prohibit expert witnesses from comparing Floyd's death to the crucifixion of Jesus Christ.

Frank explained that a prosecution witness came up with the comparison to Christ.

"That analogy absolutely will not come close" to being used, Cahill said.

Former Minneapolis officers J. Alexander Kueng, Thomas Lane and Tou Thao will be tried in one trial Aug. 23 on charges of aiding and abetting and murder and manslaughter in Floyd's death.

Staff writers Paul Walsh and Rochelle Olson contributed to this report.