By Chao Xiong
Star Tribune (Minneapolis)
MINNEAPOLIS — A judge on Thursday dropped a lower-level murder charge against the former Minneapolis police officer who pressed his knee into George Floyd’s neck for more than nine minutes, but kept a higher-level murder count against him and also ruled that the cases against three other former officers will not be dropped.
Hennepin County District Judge Peter Cahill dismissed a third-degree murder count against Derek Chauvin, but ruled that he will remain charged with one count each of second-degree unintentional murder and second-degree manslaughter.
Cahill dismissed the third-degree murder charge because the law requires that someone cause the death of another person while committing an act inherently dangerous to others. Here, no others were put at-risk so the charge must be dismissed, he ruled, citing Minnesota Supreme Court precedents.
A Minnesota Supreme Court decision in a 2014 New Brighton murder case stated that “third-degree murder ‘cannot occur where the defendant’s actions were focused on a specific person,’” Cahill wrote.
The third-degree murder count was seen by many in the legal community as “defective” when Hennepin County Attorney Mike Freeman charged it on May 29, and cost him control of the case.
Some felt that second-degree murder should have been charged from the start, and took their concerns to Gov. Tim Walz.
Michael Friedman, who was the executive director of the Legal Rights Center (LRC) at the time, said Thursday that the LRC found the same defect with third-degree murder as other attorneys and raised the issue with the American Civil Liberties Union ( ACLU) of Minnesota.
The ACLU dispatched an “emergency communication” to the governor. The next day Walz appointed Attorney General Keith Ellison as lead prosecutor in the case, Friedman said.
A few days later on June 3, Ellison’s office charged Chauvin with second-degree murder.
The ACLU did not immediately comment.
Third-degree murder is an unusual, uncommon count that some defense attorneys have said didn’t suit the Floyd case. Some attorneys have said the charge best fits a situation such as a person randomly shooting into a moving train and killing someone.
The legal definition of the charge states that it applies when someone causes a death while perpetrating an act “eminently dangerous to others” and while “evincing a depraved mind,” a standard that can be a stumbling block for attorneys and judges to resolve for jurors.
Freeman’s office initially levied the charge and manslaughter count against Chauvin four days after Floyd was killed on May 25.
“Murder three is problematic...,” attorney Robert Richman said an interview this summer about the Floyd case.
Don Lewis, who served as a special prosecutor in the Ramsey County case against Jeronimo Yanez, the former St. Anthony police officer who was acquitted for killing Philando Castile in 2016, has said that the third-degree murder count was viewed by many as “defective” in the Floyd case.
“I’m still somewhat perplexed by the way it was charged,” Lewis said several months ago before Cahill’s ruling. “My view of the facts fit an intentional second-degree murder (charge).”
Similar questions about third-degree murder also arose when Freeman’s office tried former Minneapolis police officer Mohamed Noor in 2019 for fatally shooting Justine Ruszczyk Damond. But jurors ended up convicting Noor of the count along with second-degree manslaughter and acquitting him of second-degree murder.
Lewis hypothesized earlier this year that Freeman charged Chauvin with third-degree murder because he was “comfortable” with it given the outcome in the Noor case.
Cahill’s rulings Thursday are his most significant pretrial decisions since he was assigned the case this past summer.
They resolved issues that had some activists worried Floyd’s death would go unheard in the court system like many previous cases of police killing Black civilians. And they quelled some fears that Minneapolis would once again erupt in protest, arson and looting if the former officers were to avoid criminal prosecution.
Hundreds of businesses across the Twin Cities were damaged in days of protests after Floyd’s death and before all of the former officers were charged.
Cahill also ruled that Chauvin’s former colleagues — J. Alexander Kueng, Thomas Lane and Tou Thao — will remain charged with aiding and abetting murder and manslaughter.
Attorneys for each of the defendants had filed motions to dismiss the charges against their clients.
Ellison’s office issued a statement noting that the rulings were a positive development.
“The court has sustained eight out of nine charges against the defendants in the murder of George Floyd, including the most serious charges against all four defendants,” the statement said. “This is an important, positive step forward in the path toward justice for George Floyd, his family, our community, and Minnesota. We look forward to presenting the prosecution’s case to a jury in Hennepin County.”
Ellison said the judge’s dismissal of the third-degree murder count was informed by court cases, and that his office is “considering our options in light of the court’s strong order on the remaining charges.” Ellison’s office did not elaborate on what that meant, but Cahill gave Ellison five days to appeal the dismissal of the third-degree count.
Cahill was also expected to rule sometime soon on a motion filed by Ellison’s office to try the four defendants in one trial instead of separately. That decision had not been filed in the court by early Thursday.
Cahill also has not issued a decision on whether to relocate the trial outside of Hennepin County as requested by each defense attorney. The judge said at a Sept. 11 hearing that the court did not have enough information to decide the matter yet, signaling a possibly longer wait on that matter.
The issues loomed over the case in recent months as attorneys for each of the defendants filed a flurry of motions.
The officers had responded to a call that Floyd allegedly used a counterfeit $20 bill at Cup Foods on the corner of E. 38th Street and Chicago Avenue.
Chauvin’s attorney, Eric Nelson, had argued that the case against Chauvin should be dismissed because he “exuded a calm and professional demeanor” with Floyd, who died of chronic health issues and drug abuse.
“The only overdose was an overdose of police force,” Ben Crump, a prominent civil rights lawyer representing Floyd’s family, said after the Sept. 11 hearing. “Who are you going to believe? Your eyes, or these killer cops?”
Kueng’s attorney, Thomas Plunkett, argued that the case against his client should be dismissed because the restraint Chauvin used was “reasonable” and that there’s no evidence that Kueng knew Chauvin was going to commit a crime.
Kueng knelt on Floyd’s back.
Floyd was moving in the car as the officers approached, didn’t initially obey orders to show both hands and resisted getting into a squad car, attorney Earl Gray wrote in arguing for a dismissal for Lane.
Lane knelt on Floyd’s legs and also used his hands to restrain them.
Robert Paule, Thao’s attorney, argued that Thao should go free because he never touched Floyd and was focused on crowd control, so he didn’t have a full view of what was happening as his colleagues restrained Floyd.
Ellison’s office rejected each argument.
Defense lawyers sought to try the four men separately, saying their cases would be antagonistic as they blamed each other for Floyd’s death.
Paule compared trying all four at once to “a group of bobcats in a bag.”
“There are going to be side attacks that I’m going to have to deal with” in a joint trial, Paule said at the Sept. 11 hearing.
Ellison’s office argued in favor of one trial, noting that the evidence against the four is similar, that witnesses and family members “are likely to be traumatized by multiple trials” and that the “interests of justice” necessitate one trial.
Each defense attorney also filed a motion to move the trial out of Hennepin County, citing media coverage that could taint the jury pool, safety concerns for the defendants and the possibility that protesters will influence or intimidate witnesses and jurors, among other reasons.
At the Sept. 11 hearing, Cahill proposed polling potential jurors “several months” before the March 8 trial date to assess whether pretrial news coverage had impacted their opinions on the case.
“I’m not sure that we need an argument today on change of venue,” Cahill said at the time.
Nelson agreed that it was “premature” to discuss the issue.
It’s unclear when Cahill will decide the change of venue matter.
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