Court of Appeals will hear arguments to add third-degree murder charge in George Floyd case

The Minnesota Court of Appeals will hear arguments about adding a third-degree murder charge against former Minneapolis police officer Derek Chauvin a week before he is set to be tried for killing George Floyd.

The Court of Appeals on Tuesday scheduled a virtual hearing for next Monday at 1 p.m. to discuss the matter. Chauvin, who knelt on Floyd's neck for more than nine minutes last May, is scheduled to be tried March 8 on charges of second-degree murder and manslaughter.

Prosecutors want to reinstate a count of third-degree murder against Chauvin and to add aiding and abetting third-degree murder for the first time against his former colleagues, J. Alexander Kueng, Thomas Lane and Tou Thao. The Court of Appeals will only hear arguments next week in the Chauvin case. The court denied prosecutors' motion to expedite a review for the other three defendants, who are scheduled to be tried in August. The request to add aiding and abetting third-degree murder to their cases remains pending, and the court said oral arguments will be scheduled at a later date.

"I'm gratified the Court will hear our appeal," Attorney General Keith Ellison said in a written statement. "The Court of Appeals has already decided in a separate case that the third-degree murder charge is appropriate. Accordingly, we believe the interests of justice are served by reinstating the third-degree murder charge against defendant Derek Chauvin and believe the jury should hear that charge. We look forward to presenting our case to the Court."

Chauvin's attorney, Eric Nelson, declined to comment.

Chauvin had been charged with third-degree murder, but Hennepin County District Judge Peter Cahill dismissed that count in October because the charge typically applies when a suspect's actions put multiple people at risk and are not focused on a single person.

The issue resurfaced after the Court of Appeals issued a 2-1 decision Feb. 1 upholding a third-degree murder conviction against former Minneapolis officer Mohamed Noor in the 2017 fatal shooting of Justine Ruszczyk Damond. The Court of Appeals wrote that third-degree murder can apply when a suspect's actions are directed at a single person.

That prompted prosecutors to file a motion Feb. 4 asking Cahill to reinstate the charge against Chauvin and to add it against the other three defendants, who are charged with aiding and abetting second-degree murder and manslaughter. Cahill denied the motion, noting that he agreed with the dissenting Court of Appeals judge and that in Floyd's case the defendants' actions were directed at one person. Prosecutors asked the Court of Appeals to intervene a little under two weeks ago.

"It seems like there are so many wheels on this case, and they're turning in separate directions," said Joseph Daly, emeritus professor at Mitchell Hamline School of Law.

In setting a hearing for next week, the Court of Appeals also asked Nelson to file his thoughts on the matter by Friday. The speed of the court's intervention and its deadlines are unusual, and indicate a sense of urgency, Daly said.

"Some really important decisions have to be made, and they have to be made very quickly," he said. "I see this speed … as basically telling us that they recognize that they have to come up with an immediate decision one way or another."

Nelson had asked the Court of Appeals to dismiss prosecutors' appeal. The court denied Nelson's request Tuesday, writing that when a district court judge denies a motion to add a charge that arises from the same evidence used to support the current charges, it can have a "critical impact" on the case. Such circumstances merit review, the Court of Appeals said.

"This is so because, if the prosecution is not permitted to charge a defendant in a single proceeding with all offenses arising out of a single behavioral incident, it is procedurally barred from doing so later after a conviction or acquittal on any of the offenses," the Court of Appeals wrote. "Here, there is no dispute that the charge of third-degree murder arises from the same behavioral incident as the remaining charges."

Daly predicted that the Court of Appeals would likely decide the matter before Chauvin's trial even though it has 90 days to rule after a hearing. However, he added, any decision could potentially delay the trial even though the Court of Appeals previously rejected prosecutors' request that it postpone the trial due to COVID-19. Cahill had twice rejected prosecutors' request to delay the trial until the summertime, prompting them to seek Court of Appeals intervention.

A ruling in favor of the prosecution could raise questions about constitutional rights and whether Chauvin could receive a fair trial with no additional time to rebuild his case around the added murder count, Daly said.

Either way the Court of Appeals rules, he added, prosecutors and Nelson could also ask the Minnesota Supreme Court for further review.

"Ultimately, it's really hard to predict what [the Court of Appeals is] going to do," Daly said. "This case is so important, not just to the state of Minnesota, but it's important to the nation — to the world."

In a court filing Monday, prosecutors argued that Cahill failed to follow case law and court rules when he rejected their motion. They asked the Court of Appeals to apply its interpretation of third-degree murder to the case instead of Cahill's.

"The District Court's contrary conclusion — that district courts need not follow this Court's decisions until the Supreme Court denies review — is inconsistent with longstanding practice and foundational … principles," wrote Assistant Attorney General Matthew Frank and Neal Katyal, special attorney for the state. "It would create chaos, enabling district courts to eschew any number of this Court's precedential decisions based on their preferred reading of the law."

The district court and Court of Appeals are bound by published opinions from the Court of Appeals, according to the Minnesota Rules of Civil Appellate Procedure, prosecutors argued.

Kueng, Lane and Thao are scheduled to be tried in one trial starting Aug. 23. Their attorneys also asked the Court of Appeals to dismiss prosecutors' request to add aiding and abetting third-degree murder; the court has not ruled on the matter.

All four defendants, who were fired, are out on bond.

Chao Xiong • 612-270-4708

Twitter: @ChaoStrib