Court of Appeals ruling puts third-degree murder back into play in George Floyd killing

The three former Minneapolis police officers charged in George Floyd's death could face third-degree murder charges following a recent court ruling.

The Minnesota Court of Appeals issued an order Wednesday reversing a District Court judge's order denying a request from prosecutors to add third-degree murder charges against J. Alexander Kueng, Thomas Lane and Tou Thao.

The Court of Appeals ruling sends the prosecution's request back to Hennepin County District Judge Peter Cahill for reconsideration and allows him to hear more arguments from both sides before deciding whether to add the count in the three cases.

Kueng, Lane and Thao are scheduled to stand trial in March 2022. They are each charged with one count of aiding and abetting second-degree murder and aiding and abetting second-degree manslaughter.

"The charge of third-degree murder is appropriate and reflects the gravity of the allegations against them," Minnesota Attorney General Keith Ellison, whose office is leading the prosecution, said in a statement. "We look forward to presenting all three charges to a jury in Hennepin County."

Lane's attorney, Earl Gray, and Kueng's attorney, Thomas Plunkett, declined to comment. Thao's attorney, Bob Paule, did not return a message seeking comment.

Adding third-degree murder to the cases would likely increase the probability of a conviction against some of the defendants, said Joseph Daly, an emeritus professor at Mitchell Hamline School of Law.

"It's going to be hard to convince a jury to convict any of these other three officers on second-degree," Daly said, "but third-degree, there's a likelihood that some of them could be convicted on that."

Daly said adding the count would also likely give the defendants more motivation to entertain plea deals.

The issue has a long history: Former Minneapolis police officer Derek Chauvin, who knelt on Floyd's neck for more than nine minutes on May 25, 2020, was initially charged with third-degree murder last year. Kueng, Lane and Thao have never been charged with the count.

Chauvin's attorney filed a motion last fall to dismiss the charge, which Cahill granted. The issue resurfaced after a Court of Appeals ruling this past February upheld a third-degree murder conviction in the unrelated case of ex-Minneapolis police officer Mohamed Noor.

Based on the Noor decision, Ellison's office asked Cahill to reinstate third-degree murder against Chauvin and to file it against the other three defendants for the first time.

Cahill denied the prosecution's motions, writing in his order that the Noor decision was not yet precedent because of a window of time allowing Noor to challenge the Court of Appeals decision by asking the Minnesota Supreme Court to review it.

That prompted prosecutors to ask the Court of Appeals to intervene. The appellate court ruled in March that Cahill's reasoning in Chauvin's case was wrong and that the Noor decision was precedential; it did not immediately rule for Kueng, Lane and Thao.

Cahill added the charge back to Chauvin's case. Jurors convicted Chauvin on April 20 of second-degree murder, third-degree murder and second-degree manslaughter. He was sentenced last Friday to 22 ½ years in prison.

Cahill said in March that he accepted the Noor ruling as precedent he must follow.

The Court of Appeals wrote Wednesday that its decision in the Chauvin matter also applies to Kueng, Lane and Thao.

Kueng's, Lane's and Thao's attorneys had filed a joint brief in March, arguing that the law did not allow charging someone with aiding and abetting third-degree murder because the count involves a defendant killing someone while "evincing a depraved mind."

"The mental state for third-degree murder is recklessness," the attorneys wrote. "… Because murder in the third degree is not a specific intent crime and turns largely on recklessness, intentionally aiding and abetting third-degree murder under Minnesota statutes is legally and inherently impossible."

Prosecutors wrote in their response that the defense argument was wrong and should not affect the Court of Appeals' review since it had not been previously raised with Cahill.

"A defendant aids and abets a crime of recklessness if he intentionally assists the reckless act with knowledge of the principal's recklessness," prosecutors wrote in a March filing. "This commonsense [sic] conclusion comports with Minnesota precedent and persuasive authority across multiple jurisdictions."

Veteran defense attorney Joe Friedberg, who is not involved in the case, sided with the defense attorneys' argument.

"How do you aid and abet someone with a depraved mind?" he asked.

Daly said the defense argument could be raised again if Cahill decides to hear new arguments on the issue. However, he predicted that it would not succeed.

"It seems to me that you can aid and abet someone who is acting with recklessness and a depraved mind … especially if you have a duty to intervene," Daly said, referencing a Minneapolis police policy that requires officers to intervene when colleagues use force inappropriately.

According to the State Court Administrator's Office, aiding and abetting third-degree murder while the person was "evincing a depraved mind" was charged three times in Minnesota between 2016 and this month; there was one conviction for the offense in the same period. Charging and convictions numbers do not always reflect the same cases, because some convictions could have resulted from cases that were charged in previous years and some charged cases could be pending.

Chao Xiong • 612-270-4708 • @ChaoStrib