Day 4 of Derek Chauvin trial: 6th juror chosen, 3rd-degree murder count back

Fired Minneapolis police officer Derek Chauvin will again face an additional count of third-degree murder in the death of George Floyd after the judge in his case reinstated the charge Thursday.

The ruling was followed throughout the day by some of the prospective jurors saying they felt emotionally distressed when they watched a bystander's video of Chauvin pinning Floyd to the pavement for more than 9 minutes during an arrest last spring shortly before his death. Court adjourned at 4 p.m. after seven potential jurors were questioned and one was chosen.

The ruling reinstating the third-degree murder by Hennepin County District Judge Peter Cahill followed a series of appellate decisions that revived the count before jury selection was to resume.

The reinstatement came after the state Supreme Court on Wednesday rejected a request by Chauvin's defense to review a Court of Appeals ruling that said the judge improperly denied prosecutors' push to recharge Chauvin with third-degree murder. Cahill dismissed the count last fall.

Cahill said Thursday that he is now bound by the Appeals Court ruling, which stems from an earlier decision involving the conviction of ex-Minneapolis police officer Mohamed Noor. The ruling declared that third-degree murder can be applied to acts directed toward a single person.

"I am granting the motion because although these cases are factually different — that is Noor and the case before us — I don't think there is a factual difference that denies the motion to reinstate," Cahill said.

"When the intent is directed at a single person, then third-degree murder may apply," the judge continued. "Single acts directed at a single person fall within the gambit of third-degree … accordingly, I am bound by that."

Attorney General Keith Ellison, in a statement, expressed satisfaction with the restored count. "The charge of third-degree murder, in addition to manslaughter and felony murder, reflects the gravity of the allegations against Mr. Chauvin," Ellison said. "We look forward to presenting all three charges to the jury."

Adding third-degree murder to Chauvin's case gives jurors the opportunity to convict him on a count sandwiched in between the current charges — second-degree murder above and manslaughter below.

Noor's third-degree murder conviction led to his 12-year prison sentence for the 2017 shooting death of Justine Ruszczyk Damond, who called 911 about a possible rape behind her home. Noor was startled when Damond approached his squad and he shot her.

Before Cahill ruled, defense attorney Eric Nelson argued that Chauvin's case is different from Noor's and others because there was no inherently dangerous factor, such as a gun.

"This is not a factually similar case, this is a distinguishable case," Nelson said. "Factually, there is no instrumentality here other than Mr. Chauvin's knee, which is not inherently dangerous."

Jury selection resumed for a third day Thursday, and a sixth member was added in the morning. He and the others are tasked with rendering a verdict in the trial of Chauvin, charged with killing Floyd last spring, who was pinned under Chauvin's knee for more than 9 minutes outside a south Minneapolis convenience store before he died.

The newest juror, a man who is married and Hispanic, joins a multiracial woman, a Black man, and three white men.

The sixth person chosen is a route driver for an unspecified business who acknowledged that missing work for a month would be a financial burden, but one he could endure, saying, "If I am a good fit and can help, I'm OK."

As for the case itself, the man said he's seen the viral arrest video in its entirety and in news reports.

Obviously, if [Floyd] would have complied, that wouldn't have happened," he said, but added that "there is more that happened than just that. ... I am willing to see all the evidence and witnesses."

Three of the day's rejected candidates were clear on their juror questionnaire responses and in comments in court that watching the viral bystander video left them troubled with how Chauvin restrained Floyd. A fourth went so far as to say the video disqualified her from being on the panel.

A woman, who is Black, said more than once that "you can't unsee it." She was pressed on whether should could put aside her opinion about what she saw and consider all the evidence in the case. The woman, who is Black, responded, "I will try my best."

The judge stepped in and asked whether it would be difficult for her to accept Chauvin's right to be presumed innocent before any evidence is presented. "I do," she said.

With that, Cahill dismissed her over the prosecution's objections and noted, "There are some legitimate concerns that you have that I want to honor."

Another possible juror who was not chosen, who is Hispanic, likened Floyd's detention to a war scene and left him with a negative impression of Chauvin. Like the woman before him, he pledged that "if I couldn't imagine myself saying not guilty, I wouldn't be here."

However, Nelson observed that the impact of the video was "cascading over your answers."

The judge noted before dismissing the man that the candidate struggled when pressed about his ability to keep an open mind once on the jury.

With this man being Hispanic and dismissed by Nelson, prosecutors challenged the strike, contending that the move was based on race. Cahill, reviewing the ethnic backgrounds of dismissed jurors so far, responded, "I see no pattern whatsoever off the defense striking minorities."

He was followed by a man who said on his questionnaire that "seeing the look on Chauvin's video and seeing the other officers and him ignoring pleas to stop once he was on the ground and subdued."

In court, he added, "That was difficult. When you see somebody who is already subdued, it seem very unnecessary and over the top to me."

Nelson acknowledged looking at the man's Facebook page and seeing that he visited the memorial at E. 38th Street and S. Chicago Avenue, where Floyd was detained and called it "holy ground." He then decided to strike the man and prevent him from being on the jury.

Yet another dismissed juror wasted no time pointing to the video and declaring she cannot overcome her feelings about the video and "I'm not sure I can bring impartiality to the case. ... I have seen the video. I do feel strongly [it brings] a high level of evidence in this case. It's sort of been ingrained in my brain."

The prosecution also used a strike to dismiss the morning's final prospective juror. The suburban businessman expressed largely positive views about police. He said he had "neutral" feelings about Chauvin and Floyd because he had never met either one of them, and that he was shocked by the sometimes destructive civil unrest in the aftermath of Floyd's death.

Questioned in writing about the Black Lives Matter movement, he said it "has been involved in too much destruction in the city." Elaborating in court, he said he was referencing "the vandalism of the city and seeking the letters BLM, [then added] I'm not accusing the actual organization of actually doing it."

Commenting on whether the criminal justice system treats certain racial groups unfairly, he said, "I've never really been involved with the police. I don't see it."

Prospective jurors have been questioned about their knowledge of the case since Floyd's death on May 25, their views on race and criminal justice, their opinions about police and Chauvin in particular, among other topics.

Once there are 14 jurors — two of them will be dismissed as alternates once deliberations start — the trial will turn to opening statements, which are scheduled for March 29.

Former officers J. Alexander Kueng, Thomas Lane and Tou Thao are set to go on trial together Aug. 23 on charges of aiding and abetting second-degree murder and manslaughter in Floyd's death.

Star Tribune staff writers Chao Xiong and Rochelle Olson contributed to this report.

Paul Walsh • 612-673-4482