Prosecutors ask Court of Appeals a second time to intervene in George Floyd case

Attorneys prosecuting former police officers for the death of George Floyd are asking the Minnesota Court of Appeals to intervene and overturn a judge's decision not to reinstate third-degree murder counts in the case.

The latest filing marks the fifth time Attorney General Keith Ellison's office has pushed back at a ruling by Hennepin County District Judge Peter Cahill, who presides over the cases against the four former Minneapolis police officers charged in Floyd's May 25 death. Three challenges were presented directly to the judge himself; two went to the Court of Appeals.

Legal scholars and veteran attorneys have said it's highly unusual to ask the Court of Appeals to intervene before a case goes to trial, and the court has already told prosecutors once that it would not second-guess the judge's discretion.

Prosecutors filed their second appeal late Friday, asking the Court of Appeals to review Cahill's rejection of their motion to reinstate a count of third-degree murder against Derek Chauvin and to add aiding and abetting third-degree murder for the first time against J. Alexander Kueng, Thomas Lane and Tou Thao. The filing was made public Tuesday due to the government holiday Monday.

"The District Court erred in preventing the State from amending its complaint to reinstate or add the third-degree murder charge against the four Defendants," wrote Assistant Attorney General Matthew Frank and Special Attorney for the State Neal Katyal.

Chauvin is charged with second-degree murder and manslaughter. He had been charged with third-degree murder, but Cahill dismissed that count in October because the charge typically applies when a suspect's actions put others at risk and is not targeted at a specific person. It is commonly used to charge drug dealers in overdose deaths; veteran attorneys have said it would apply, for instance, to someone shooting indiscriminately into a moving train.

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 unrelated 2017 fatal shooting of Justine Ruszczyk Damond, writing that the count can apply when "the death-causing act was solely directed at a single person and was not eminently dangerous to others."

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 in a ruling last Thursday, noting that the defendants' actions were directed at one person.

The defendants were arresting Floyd on a report that he used a fake $20 bill when they pinned him stomach-down in the street, with Chauvin kneeling on his neck for more than nine minutes.

The count should be added, prosecutors argued in their appeal, because the evidence supporting the other counts also supports third-degree murder, and because of the Court of Appeals ruling in Noor's case. The Noor ruling has not yet become legal precedent because Noor's attorneys are allowed to challenge it by asking for a Minnesota Supreme Court review, which they have said they will pursue.

The appeal was filed hours after the Court of Appeals issued a rejection Friday of prosecutors' first request that it intervene.

Prosecutors in January asked the Court of Appeals to overturn Cahill's rulings ordering one trial in March for Chauvin and a second trial in August for his three co-defendants. Prosecutors wanted one trial in the summertime for all four defendants due to COVID-19 safety concerns, and asked the court to hold a hearing on the issue or to issue a writ of prohibition to stop the March trial.

Court of Appeals Presiding Judge Tracy Smith wrote that trial judges have discretion to make such decisions, and that prosecutors didn't provide enough evidence to compel intervention.

"We are not persuaded that these discretionary rulings present the type of legal issues that should be reviewed by way of a petition for a writ of prohibition, especially in light of the supreme court's guidance about prosecution pretrial appeals being disfavored and a showing of critical impact being required to obtain appellate review," Smith wrote. "Moreover, the state has not identified any case establishing that a petition for writ of prohibition is the 'proper procedure' for challenging a pretrial order."

The court is designed to deal with complaints about the trial process after a defendant has been convicted, legal scholars have said.

"The Court of Appeals is generally reluctant to second-guess decisions by a trial judge, things like scheduling of the trial," Richard Frase, a University of Minnesota law professor and co-director of the Robina Institute of Criminal Law and Criminal Justice, said Friday before prosecutors filed their second appeal. "They also just don't want a constant stream of appeals questioning the trial judge. Trial judges have a lot of discretion to make decisions."

In November, prosecutors filed a motion asking Cahill to reconsider his ruling to livestream the trials because COVID-19 safety protocols would severely limit in-person attendance. In January, they also asked Cahill to reconsider his ruling splitting the trial into two and rejecting their request for a summer trial. Cahill denied both motions.

Thao's attorneys, Robert and Natalie Paule, filed an unrelated motion Monday accusing Ellison's office of leaking information and calling for the dismissal of the charges against their client. It was made public Tuesday.

They accused Ellison's office of leaking information attributed to anonymous law enforcement officials to the New York Times and Associated Press that said Chauvin was ready to plead guilty to third-degree murder last year until the deal was rejected by then-U.S. Attorney General William Barr.

"Using deductive reasoning, the leak had to have come from the State," Thao's attorneys wrote. "It is impossible to overstate the magnitude of this misconduct or its prejudicial effect on the defendants' constitutional due process rights of a fair trial."

Ellison denied the accusation.

"This is one convoluted conspiracy theory," Ellison said in a written statement. "It fantasizes that even before we took over the case, we somehow knew what then-President Trump's then-attorney general was thinking. It's completely false and an outlandish attempt to disparage the prosecution for seeking justice in the death of George Floyd.

"Had we been contacted prior to its filing, we could have debunked this bizarre theory from the outset and avoided this waste of the court's time."

Thao's attorneys asked for an in-person hearing within the next week and for Ellison, Frank and Katyal to attend. They asked that all attorneys on the case submit affidavits to the court declaring that they did not leak the information and do not know the source.

Cahill should dismiss the case against Thao or impose sanctions against prosecutors if they "directly or indirectly" leaked the information, wrote Thao's attorneys.

Chao Xiong • 612-270-4708

Twitter: @ChaoStrib