Reinstated third-degree murder charge against Derek Chauvin presents opportunity, risks

By Chao Xiong and Paul Walsh
Minneapolis Star Tribune/TNS

MINNEAPOLIS - A judge added a third-degree murder charge Thursday against fired Minneapolis police Officer Derek Chauvin in a move seen by some legal analysts as strategic to winning a conviction, but not without potential drawbacks.

The development was followed by a day of jury selection that saw several prospective jurors relaying their emotional distress at viewing video of Chauvin pinning George Floyd under his knee for more than nine minutes. Floyd died during the arrest last spring.

Seven potential jurors were questioned; one was chosen. A jury of one multiracial woman, one Black man, one Hispanic man and three white men have been seated over three days of jury selection. A jury of 14, two of them alternates, will be seated before opening statements and testimony begin March 29.

Hennepin County District Judge Peter Cahill reinstated the third-degree murder charge against Chauvin following a series of appellate decisions that forced him to walk back two of his prior rulings on the matter.

Cahill dismissed the charge from Chauvin's case last fall, but it came back into play after a February Court of Appeals ruling upheld a third-degree murder conviction in the unrelated case of ex-Minneapolis police Officer Mohamed Noor.

Prosecutors asked for Cahill to reinstate the count based on the Noor decision, and when he refused, they went to the Court of Appeals. The appellate court ruled last Friday that Cahill was wrong when he said the Noor ruling was not yet precedent, and ordered him to apply it to Chauvin's case.

Chauvin's attorney, Eric Nelson, asked the state Supreme Court on Monday to review last week's ruling, but the high court rejected the request Wednesday, sending the prosecution's motion back to Cahill.

The judge said Thursday he accepts the Noor ruling as precedent he must follow. He defended his previous reasoning on the issue, saying last week's appellate ruling "implies that this court disregarded plain language in the rules (governing court procedures), or, at worst, was too lazy to look up the rules. Neither was the case."

Cahill said he diligently researched court rules but could not find clear guidance on whether a Court of Appeals ruling is precedent the moment it is issued, or, whether it only becomes binding after the expiration of a deadline for attorneys to challenge such rulings. Noor's attorney, Thomas Plunkett, asked the state Supreme Court to review the February ruling; the high court accepted the request.

"We found silence, not plain language," Cahill said of the court rules. "I think the Court of Appeals reaches too far by saying there is plain language in the rules. There's silence."

The appellate court "inferred" from that silence that its decisions are precedent upon immediate release, Cahill said, adding that he acknowledges that the court has authority to determine when its decisions are precedential.

Minnesota Attorney General Keith Ellison, whose office is prosecuting Chauvin, welcomed the development.

"The charge of third-degree murder, in addition to manslaughter and felony murder, reflects the gravity of the allegations against Mr. Chauvin," Ellison said in a written statement. "We look forward to presenting all three charges to the jury."

Third-degree murder provides jurors more opportunities to convict Chauvin and could be viewed by them as a compromise between the other charges he faces - the more serious second-degree murder and manslaughter. But it presents its own uncertainties.

The charge could become a liability given the state Supreme Court's pending review of Plunkett's challenge in the Noor case. The high court will hear arguments on the issue in June.

Prosecutors likely fought to add third-degree murder because they thought it was their best chance at a conviction, said Mitchell-Hamline School of Law professor Ted Sampsell-Jones.

If the state Supreme Court overturns the Noor decision, it would create an opening for Chauvin if jurors were to convict him on third-degree murder and acquit him of the other two counts.

Jurors can acquit or convict Chauvin on all of the charges, or, any combination of the counts.

Overturning the Noor ruling would likely prompt Nelson to successfully appeal a third-degree murder conviction, said Sampsell-Jones and Mitchell-Hamline School of Law professor Brad Colbert. Prosecutors would then be prohibited from retrying Chauvin on second-degree murder and manslaughter because of U.S. and state constitutional protections against double jeopardy, or being tried twice for the same crime, they said.

"There is some risk for the prosecution, but I think what they're counting on, and I think they're correct, is that the Supreme Court will uphold Noor's third-degree murder conviction," Sampsell-Jones said.

If jurors are paying attention to the language of the law and decide to convict Chauvin on third-degree murder, they should also convict him on second-degree manslaughter because the elements to convict on one applies to the other, he said.

However, he said, jurors sometimes convict on charges that feel right to them despite legal standards. Disagreements about charges and a desire to compromise can be factors, he added.

"Jurors, even if what they do doesn't make sense legally, it makes sense for them morally," Sampsell-Jones said. "That kind of thing happens a lot in jury rooms, that's why there's been so much fighting over third-degree murder, because I think the attorneys understand the importance of giving jurors a compromise."

Noor was tried on the same three charges facing Chauvin. Jurors convicted Noor in 2019 of third-degree murder and second-degree manslaughter in the fatal shooting of Justine Ruszczyk Damond. They acquitted him of second-degree murder.

Noor was sentenced to 12 1/2 years in prison, which is the presumptive sentence under the Minnesota sentencing guidelines for third-degree murder. Prosecutors have said they plan to seek an aggravated sentence for Chauvin above recommended guidelines because of the "particular cruelty" shown to Floyd.

Sampsell-Jones said if Chauvin were convicted on the same counts as Noor and the Supreme Court later overturned Noor, that would leave prosecutors with a lower count to resentence Chauvin on.

While punishable by up to 10 years in prison, second-degree manslaughter carries a presumptive sentence of four years, Sampsell-Jones said.

"I think that would feel like a victory for the defense and a loss for the prosecution," he said, "and I think it would be perceived by the public as ... a very light sentence."