Appeals court to hear arguments on adding 3rd-degree murder charge against Chauvin

A hearing on the matter will be held Monday, just one week before trial is scheduled to begin

Former Minneapolis police officer Derek Chauvin
Former Minneapolis police officer Derek Chauvin is escorted from the rear of the Hennepin County Family Justice Center by a law enforcement officer after a hearing in September 2020. A state appeals court on Tuesday said it will fast-track a request from the state Attorney General's office to consider adding a third-degree murder charge to the Chauvin case.
David Joles | Star Tribune via AP 2020

Updated: 5:34 p.m.

With the first trial stemming from the killing of George Floyd set to begin in less than two weeks, a state appeals court says it will fast-track a request from the Minnesota Attorney General's office to consider reinstating a third-degree murder charge against former Minneapolis police officer Derek Chauvin.

The court has scheduled a virtual hearing for oral arguments on the matter at 1 p.m. Monday.

Prosecutors had unsuccessfully asked Hennepin County District Judge Peter Cahill to reinstate the third-degree murder charge in Chauvin's case. Chauvin is already facing charges of second-degree murder and second-degree manslaughter in the May 25 killing of Floyd, and his trial is poised to begin with jury selection March 8.

But this month Cahill ruled that the third-degree murder charge did not apply. The judge also said he wouldn't allow the prosecution to add charges of aiding and abetting third-degree murder against three officers set to go on trial in August in connection with Floyd's killing. 

It wasn’t the first time Cahill ruled that the charge didn’t fit the case. Prosecutors had charged Chauvin with third-degree murder, but in October, the judge struck it and upheld the more serious charge. Minnesota's third-degree murder statute can be a challenge for prosecutors, who must prove that the defendant, as the statute outlines, was "evincing a depraved mind" while carrying out a suspected crime.

An appeals court decision upholding the sentence of former Minneapolis police officer Mohamed Noor in the 2017 killing of Justine Ruszczyk spurred the challenge by prosecutors, who argued that the ruling showed that  third-degree murder charges can be directed at just one person.

In an order issued Tuesday, the higher court said it needed to hasten the appeals process.

“Because of the imminence of respondent Chauvin’s trial, there is good cause to expedite consideration of the state’s appeal in his case,” wrote presiding Judge Michelle Larkin.

At stake is whether the decision upholding Noor’s third-degree murder conviction is treated as precedent in Chauvin’s case even though Noor’s attorney has said he plans to appeal, according to Richard Frase, a professor of criminal law at the University of Minnesota Law School.

Prosecutors have repeatedly pushed to delay the trial and again merge the four defendants together, which may explain the most recent appeals court challenge and expedited hearing planned for Monday, Frase said. In court filings, they have said that they are prepared to go to trial — but that if the third-degree murder charges were added, the attorneys representing the officers might need more time to prepare their defense.

“I wouldn’t be surprised if the trial didn’t start on March 8,” Frase said. “On the other hand, up until now, it seems like Judge Cahill is very determined to start the trial on March 8.” 

Larkin wrote that there was no need to expedite the appeal to add charges to former officers Thomas Lane, J. Alexander Kueng and Tou Thao because their trial won’t begin until Aug. 23.

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