Chauvin’s attorney faces skepticism over charge in Floyd’s death

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Izai Dominguez with Hansen Bros Fence adds barbed wire to the chain-link fence and concrete barriers around the Hennepin County Government Center and City Hall to fortify the buildings in preparation for Derek Chauvin’s trial in the
killing of George Floyd. The trial is scheduled to start on March 8.

ANTHONY SOUFFLE/MINNEAPOLIS STAR TRIBUNE/TNS

BY CHAO XIONG
STAR TRIBUNE/TNS

MINNEAPOLIS – The attorney for former Minneapolis police Officer Derek Chauvin, who is charged in George Floyd’s death, faced skepticism Monday from Minnesota Court of Appeals judges as he argued that his client should not be charged with third-degree murder.

The court heard arguments from Special Attorney for the State Neal Katyal and Chauvin attorney Eric Nelson during the Monday afternoon hearing.

Prosecutors from Attorney General Keith Ellison’s office are asking the Court of Appeals to overturn a decision by Hennepin County District Judge Peter Cahill that prohibited adding the charge to Chauvin’s case.

Chauvin, who knelt on Floyd’s neck for more than nine minutes May 25, is scheduled to be tried March 8 on second-degree murder and manslaughter.

Former ruling

Court of Appeals Judge Michelle Larkin asked attorneys to focus their arguments on whether Cahill was bound by a Feb. 1 Court of Appeals ruling that upheld a third-degree murder conviction in an unrelated case involving an ex-Minneapolis police officer, and should have charged Chauvin with third-degree murder, or, if he was allowed to diverge from the ruling, which could possibly undergo review before the Minnesota Supreme Court.

The judges first heard arguments from Katyal and asked him questions after he spoke at length without interruption. Nelson spoke second and was quickly interrupted mid -argument as judges peppered him with questions about the merits of his logic.

Nelson has argued that the Court of Appeals’ ruling is not yet legal precedent because of a possible review by the State Supreme Court. Prosecutors have argued that the ruling is binding as soon as it is published and unless it is overturned by the State Supreme Court.

Possible scenario

Larkin noted that if the State Supreme Court decides to review the Court of Appeals ruling, it could take more than a year to reach a decision to either uphold or overturn the ruling.

“… That means people could be waiting 12-plus months for final judgment and this court’s precedential opinion in the meantime would have no affect according to your position … that’s your argument,” Larkin asked Nelson.

Nelson confirmed Larkin’s assessment, adding that such a scenario would be the “exception to the rule.”

Larkin asked if Nelson believed Minnesota prosecutors should stop charging third-degree murder in other cases until the state Supreme Court resolves the debate by either refusing to review the February ruling, or, reviewing it and upholding or overturning it.

“I do think that that would be an extremely rare hypothetical scenario, but would technically be possible,” Nelson said.

Larkin said the court would issue an expedited decision on the matter “as soon as possible” given Chauvin’s trial next week.

Third-degree murder

Chauvin had been charged with third-degree murder, but Cahill dropped the
count in October, writing that the defendants had targeted Floyd and no one else.

The language of the third-degree murder statute has caused many to debate whether the charge applies only when a defendant’s actions put multiple people instead of a specific individual at risk and results in a death, or, whether it can apply when the defendant directs their attention at a single person. The issue was not debated Monday, although Katyal noted that the Court of Appeals was correct in its interpretation of the statute.

Prosecutors asked the Court of Appeals to overturn Cahill’s ruling and uphold its own interpretation of the law.

Prosecutors also want to add aiding and abetting third-degree murder against Chauvin’s former colleagues — J. Alexander Kueng, Thomas Lane and Tou Thao — who are charged with aiding and abetting second-degree murder and manslaughter. They are scheduled to be tried in one trial Aug. 23.

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