Derek Chauvin's attorney pushes back on proposed third-degree murder count in Floyd case

Prosecutors shouldn't be allowed to reinstate third-degree murder charges against former Minneapolis police officer Derek Chauvin, nor should expert witnesses be allowed to liken George Floyd's death to the crucifixion of Christ, Chauvin's attorney argued Monday in court filings.

Defense attorney Eric Nelson filed several motions proposing a number of protocols at trial, ranging from blocking prosecutors and their witnesses from calling Floyd a "victim" to allowing testimony about his opiate addiction.

Most significantly, Nelson pushed back against a motion filed by prosecutors Thursday to reinstate one count of third-degree murder against Chauvin.

Prosecutors sought the reinstatement based on a Minnesota Court of Appeals split ruling earlier in the week that upheld a third-degree murder conviction against former Minneapolis police officer Mohamed Noor for the 2017 fatal shooting of Justine Ruszczyk Damond.

Chauvin is scheduled to stand trial March 8 on charges of second-degree murder and manslaughter in Floyd's death last May. A count of third-degree murder had been charged against Chauvin but was dismissed in October by Hennepin County District Judge Peter Cahill.

"The state has deliberately turned a blind eye to actual binding precedent which clearly establishes that [the Noor ruling] is not, in fact, precedential," Nelson wrote.

The charge could not be reinstated, Nelson argued, because the Court of Appeals' ruling hasn't yet become legal precedent due to a window of time that allows Noor's attorneys to challenge the decision. He added that the state's "reliance on [the Noor ruling] is misplaced, or, at best, premature. Its motions to reinstate or amend the complaint must, therefore, be denied."

According to Nelson's memorandum, Court of Appeals rulings are not final until 30 days after they are issued, and then only if the defendant does not petition the Minnesota Supreme Court to review the matter. Such a petition would delay the decision from being finalized.

If no one petitions the Supreme Court, the Noor decision would become precedent on March 3. If the high court is petitioned, the Court of Appeals' decision would not become precedent until May 2, Nelson wrote.

The Supreme Court does not have to review every matter brought before it.

Noor's attorney, Thomas Plunkett, has said he will petition the Supreme Court to review the Court of Appeals' decision. Plunkett also represents J. Alexander Kueng, one of the three other former Minneapolis police officers charged in Floyd's death.

Kueng, Thomas Lane and Tou Thao are scheduled to be tried together in one trial Aug. 23 on charges of aiding and abetting murder and manslaughter. Prosecutors also announced last week that they want to add third-degree murder charges to their cases. Their attorneys have not filed a response.

All four former officers, who were fired, are out on bond.

Nelson also argued that the third-degree murder charge did not fit his client's case since Chauvin's actions were specifically directed at Floyd alone, while the charge criminalizes "reckless or wanton" behavior that endangers others. Noor fired his gun in a squad car across his partner's body at a dark silhouette outside the squad car and in the direction of residential homes, Nelson noted.

In a separate document, Nelson filed several motions about trial matters, many of them without context. He did not return a message seeking comment Monday.

Among the motions, he asked for an order "precluding any expert from likening the death of George Floyd to the crucifixion of Jesus Christ on the ground that such analogy is prejudicial." Nelson did not explain the issue.

Among several other demands, he asked Cahill to:

• Prohibit prosecutors and their witnesses from calling Chauvin the "defendant" or "accused";

• Compel prosecutors to share witnesses' criminal histories;

• Order prosecutors to disclose "the substance of conversations" between them and staffers in the Minnesota Attorney General's Office and the Hennepin County Attorney's Office, which together are prosecuting the case;

• Prevent testimony about a "blue line or blue wall of silence," when police are accused of protecting their own by not testifying truthfully — an issue that was openly discussed during Noor's 2019 trial;

• Limit testimony about medical examinations of Floyd to the findings of Hennepin County Chief Medical Examiner Dr. Andrew Baker, who ruled Floyd's death a homicide and that he died of cardiopulmonary arrest complicated by being restrained by police.

Attorneys for Floyd's family were critical of Baker's findings and released a private autopsy report that said Floyd died of asphyxia, the deprivation of oxygen. Defense attorneys have argued that Floyd died of a drug overdose complicated by pre-existing health issues.

Chao Xiong • 612-270-4708

Twitter: @ChaoStrib