Derek Chauvin WILL face third degree murder charges in a stunning reversal of Hennepin County District Court’s decision to remove the charge from his rap sheet last October.
Judge Peter Cahill heard arguments from both prosecution and defense on the matter first thing on Thursday morning after the state Supreme Court kicked back a defense appeal to override a Court of Appeal’s ruling that he had erred in his earlier decision.
The decision is a huge blow to Chauvin. The charge is seen by many to represent the prosecution’s best chance of securing a murder conviction in the ex-Minneapolis police officer’s trial for the killing of George Floyd.
If Chauvin is convicted of third-degree murder, he faces a maximum sentence of 25 years, though sentencing guidelines state that someone who does not have a criminal record – like Chauvin – would receive 12.5 years behind bars.
Last spring, Floyd’s family reacted angrily to the Minnesota Attorney General’s Office decision to initially charge Chauvin with third-degree murder, an indication that prosecutors believed that the cop did not act intentionally.
Hennepin County District Court Judge Peter Cahill (pictured left on Thursday in court in Minneapolis) reinstated the third-degree murder charge against former Minneapolis cop Derek Chauvin (seen in court on Thursday)
Chauvin, 46, faces the prospect of decades in prison if he is convicted of second-degree murder or third-degree murder. A conviction of just second-degree manslaughter would likely result in a four-year prison sentence. Chauvin is the police officer seen kneeling on the neck of George Floyd, a 46-year-old black man, for nearly nine minutes in Minneapolis on May 25. Shortly afterward, Floyd was pronounced dead at the scene
George Floyd is pictured in the above undated file photo. Chauvin’s attorney will argue that Floyd’s death was caused by methamphetamines and opioids found in his system
Floyd’s family wanted a first-degree murder charge, the most severe crime that has a higher bar of proof since prosecutors would have to convince a jury that Chauvin acted with a premeditated intent to kill him.
On the eve of Chauvin’s trial, protesters on Sunday warned: ‘If he walks free, I want even more people on the streets.’
Two attorneys representing Floyd’s family – Benjamin Crump and Antonio Romanucci – released a statement on Thursday praising the decision by the judge to reinstate the third-degree murder charge.
‘We’re gratified that the judge cleared the way for the trial to proceed and for Chauvin to face this additional charge,’ the two attorneys said in a statement to DailyMail.com.
‘The trial is very painful and the family needs closure. We’re pleased that all judicial avenues are being explored and that the trial will move forward.’
A leak last month revealed that Chauvin had agreed to plead guilty to the charge in a plea-deal that later fell apart when it was rejected by the then Attorney General William Barr.
Chauvin was previously charged with second-degree murder, which carries a maximum penalty of 40 years in prison, though state sentencing guidelines would likely land him behind bars for 12.5 years since he doesn’t have a criminal record.
A conviction for second-degree manslaughter carries a maximum penalty of 10 years in prison – though guidelines would have him incarcerated for just four years.
Prosecutors feared he will escape the murder charge and will only be convicted of manslaughter, so they wanted third-degree murder added as an option for the jury.
Cahill had initially excluded the charge because he did not agree that third degree murder could be applied to an action affecting only a single person. Instead he took the view it could only be applied to ‘depraved…dangerous behavior’ that put multiple people at risk.
He had rejected the State’s contention that a recent Court of Appeal’s ruling upholding a third degree murder conviction against Minneapolis police officer Mohamed Noor, could be taken as precendent as that judgment had not been entered when he made his own ruling.
Noor was convicted for the fatal shooting of Justine Rusczyk Diamond in 2017.
Cahill on Thursday accepted that Wednesday’s state Supreme Court ruling, kicking the issue back to his court, confirmed the Noor decision as a precedential opinion and said, ‘I’m not that incorrigible that I would disagree with the Court of Appeals and their motions.’
A woman walks near the makeshift memorial of George Floyd in Minneapolis before the second day of jury selection begins in the trial of former Minneapolis Police officer Derek Chauvin who is accused of killing Floyd
A man clears the makeshift memorial of George Floyd in Minneapolis on Wednesday
An Appeal Court decision on the State’s request to halt jury selection until the matter is resolved is still pending.
Six jurors have been seated after just two days of screening by attorneys and Hennepin County District Court Judge Peter Cahill, who had set aside at least three weeks to fill the panel.
A sixth juror, a Hispanic man in his twenties or thirties, was seated as the morning session continued on Thursday.
The juror, who described himself as a family man with a love of soccer, admitted that he had formed a negative opinion of Chauvin but said that he believed discrimination on the basis of race wasn’t as bad as the media made out.
One potential juror was excused by the judge after admitting, despite having initially claimed she could be fair and impartial, that she could not presume Chauvin innocent and that not guilty was a verdict she ‘would not like.’
The single-mother-of-two told the court that she had been traumatized by the video of Floyd’s death which she ‘could not unsee,’ and that she wept as he ‘cried for his mother in the last moments of his life.’
Shortly after lunch recess the prosecution made a second, unsuccessful attempt, to argue that the defense was striking jurors on the basis of race.
Prosecutors made a Batson challenge in response to the defense decision to exercise their first peremptory challenge of the day on a male juror who identifies as Hispanic.
The challenge – which the prosecution also attempted on the first day of the selection process – alleges that potential jurors are being discriminated on the basis of race.
Rejecting the prosecution’s contention Cahill said, ‘I don’t find that this was race based. The juror was very torn and you could tell he had difficulty (accepting the presumption of innocence)..and unlike any other prospective juror he described the video to a World War II occupying force.’
Questioned by Chauvin’s attorney Eric Nelson the prospective juror had said he had viewed the video of Floyd’s death as akin to something out of ‘a war zone.’
And that World War II was what ‘popped into’ his head.
He said, ‘What I saw was people who treated a citizen worse than an enemy combatant.
‘The video reminded me of a war zone…what popped into my mind were images of World War II. In this instance the police were behaving more like an occupying force than a police officer.’
Cahill also pointed out that the current jury make-up – one juror who identifies as multi-racial, three white, one Hispanic and one black – shows ‘no pattern whatsoever of the defense striking racial minorities.’
The city of Minneapolis is on edge as the Chauvin trial gets underway. Three other officers involved in Floyd’s arrest will be tried separately this summer
The makeshift memorial in Minneapolis includes flowers, plants, pro-BLM signs, paintings, drawings, and messages of support and condolences for Floyd
A man removes dead flowers from the makeshift memorial of George Floyd in Minneapolis on Wednesday
The makeshift memorial is seen from across the street in Minneapolis on Wednesday
A man walks past the mural of George Floyd near the makeshift memorial in Minneapolis on Wednesday
In the course of the afternoon the defense used another of its peremptory strikes leaving them with just six of the 15 which they have been allotted.
Chauvin’s attorney also revealed the depth of research conducted into these prospective jurors by both sides when he challenged the male music teacher’s assertion that he could be impartial by referencing something he had posted on his social media.
The male music teacher in his sixties posted about a visit he had made to the sight of Floyd’s death. Chauvin’s attorney read the post for the court in which he described the site as ‘holy ground,’ and spoke of a ‘groundswell desire for change.’
Asked if he could return a verdict of not guilty. He replied that, yes he could imagine that scenario.
But the hammer fell when he hesitated as Nelson continued, ‘Would you post about that on social media? Would you be able to proudly say to your friends and family members and say, “I was a juror that found Mr Chauvin not guilty”?
The final prospective juror of the day was questioned directly and excused by the court having repeatedly said that she could not set her feelings aside regardless of the judge’s instructions or the facts presented to her in the trial.
STATE OF MINNESOTA V DEREK CHAUVIN – THE CHARGES
Chauvin is charged with second-degree murder, which in Minnesota can be ‘intentional’ or ‘unintentional.’
The second-degree murder charge requires prosecutors to prove Chauvin caused Floyd’s death while committing or trying to commit a felony — in this case, third-degree assault.
Prosecutors must convince the jury that Chauvin assaulted or attempted to assault Floyd and in doing so inflicted substantial bodily harm.
Prosecutors don’t have to prove that Chauvin was the sole cause of Floyd’s death – only that his conduct was a ‘substantial causal factor.’
If the prosecution can prove Chauvin committed third-degree assault on Floyd, he can be convicted of Floyd’s death.
Prosecutors are fearful that Chauvin will escape conviction for second-degree murder, that carries a maximum 40 year sentence.
But because Chauvin does not have any prior convictions, sentencing guidelines recommend he serve no more than 25.5 years behind bars.
The manslaughter charge has a lower bar, requiring proof that Chauvin caused Floyd’s death through negligence that created an unreasonable risk, and consciously took the chance of causing severe injury or death.
In other words, Chauvin should have been aware that through his actions he was placing Floyd at risk of dying even though it may not have been his intent to kill him, according to prosecutors.
If convicted of second-degree manslaughter in Minnesota, the charge carries a maximum penalty of 10 years in prison.
But sentencing guidelines for someone without a criminal record call for no more than four years behind bars.
Third-degree murder would require a lower standard of proof than second-degree.
To win a conviction, prosecutors would have to show only that Floyd’s death was caused by an act that was obviusly dangerous, though not necessarily a felony.
That would result in a maximum sentence of 25 years.
But there are caveats.
Chauvin has no criminal history, which means he will probably end up serving about 12.5 years whether he is convicted of second or third-degree murder.
Only one person was seated during today’s proceedings which saw the prosecution use one more of its nine peremptory challenges leaving the state with just five remaining challenges with eight prospective jurors scheduled to be questioned tomorrow.
Attorneys have given considerable attention to the jury pool’s attitudes toward police in the first three days of questioning, trying to determine whether they’re more inclined to believe testimony from law enforcement over evidence from other witnesses to the fatal confrontation.
On Wednesday, the first black man was seated on the jury after telling the court he once lived in the same area where Floyd died, adding: ‘It could have been me.’
The juror, the fifth to be seated, is a married IT manager in his thirties who emigrated from West Africa to the United States 14 years ago.
Like other jurors, he said that he supported the ideals of the Black Lives Matters movement but went further than his peers saying, ‘All lives matter, but black lives matter more because they are marginalized.’
He also voiced support for Blue Lives Matter and when questioned by the prosecution said he was strongly opposed to defunding the police, stating that the presence of police made him feel safer.
‘I believe our cops need to be safe and feel safe in order to protect our community,’ he said.
He told the court that he believed in the country’s justice system and wanted to serve on the jury because it was his civic duty.
‘I also believe that to make the justice system work I think we need people that are part of the community to sit as a juror,’ he said.
He said that he was not on social media but had seen the video of Floyd’s death and formed a slightly negative view of Chauvin.
He added that he was conscious that he did not know what had happened before or after the short clips he had seen.
Chauvin’s attorney pressed the potential juror on one answer that he had written in response to the jurors’ questionnaire. He stated that, while discussing Floyd’s death with his wife, he had said, ‘It could have been me.’
Asked what he meant by that the juror explained that he used to live in the area where Floyd died and said, ‘It could have been me or anyone else. It could have been anybody. It could have been you, that’s what I mean.’
He also said he would be more inclined to believe an officer over the word of another witness. But he said he could set aside any ideas about the inherent honesty of an officer and evaluate each witness on their own.
‘In my community, I think when there is suspicious activity the police will stop by, they will ask a question,’ he said.
‘I think that sense of community is all we want right? We want to live in a community where we feel safe regardless of race, color and gender.’
Prosecutor Steve Schleicher noted that the man also stated in his questionnaire that he strongly disagreed with the concept of ‘defunding’ the police, which has become a political flashpoint locally and across the country in the wake of Floyd’s death.
‘While I necessarily might not agree with the police action in some situation, I believe that in order for police to make my community safe they have to have the money,’ he replied.
Earlier on Wednesday, a fourth juror was seated after he agreed to postpone his wedding. It was also learned that another juror was dismissed because he feared protesters would target his home and family.
The fourth juror selected is a white, Minnesotan male in his thirties, who is in sales management. He joins the two white men and one woman of color seated in yesterday’s proceedings.
Describing himself as ‘a very logical person who tries to eliminate emotion as much as possible,’ he told the judge that he was willing to postpone his wedding plans to take part in the case. He is due to marry on May 1.
He claimed to have watched the video of Floyd dying once in full and a couple of times partially and that he could set aside his personal opinions.
He admitted to knowing one potential witness, a forensics officer with the BCA, and has a cousin formerly in law enforcement.
He also said that he was sensitive to the notion that people are ‘treated differently due to their color,’ having taken a couple of civil rights courses in college.
The juror also said that he had ‘strongly favorable’ views of the Black Lives Matter movement.
‘In my college years, I took a couple of great courses following the Civil Rights movement, and they really just led me on the path of racial injustice throughout our history,’ he told the court.
He said he was an avid sports fan and supported the right of black football players to protest police brutality by kneeling during the national anthem before games.
The defense used three more of their peremptory strikes, leaving them with 10 in total, while the prosecution used two, leaving them with six.
Among the potential jurors struck by the defense was a married father-of-two who described himself as an advocate for prison reform, revealed that his brother was a former Minnesota judge and also shared that he has a retired medical doctor for a brother-in-law.
Wrapping up his voire dire Nelson said, ‘It’s clear to me you have some pretty strong feelings about social justice and opinions on this case and you’ve thought enough about the Fifth amendment that you’ve brought it up.
‘You say you can follow the rules and set that aside, but when the rubber hits the road can you?’
Meanwhile the state used their strikes to excuse two female potential jurors including one a practicing attorney and mother to a two-year-old daughter who agreed when asked if it was fair to say that she had a, ‘Deep respect for law enforcement.’ She also agreed that, ‘sometimes police officers don’t get the respect they deserve from society.’
Court proceedings closed with the defense striking the final potential juror of the day – a church leader who described Chauvin as having ‘murdered’ Floyd with a ‘choke hold,’ and considered himself an advocate for racial justice who would view being on the jury as ‘walking into the lions’ den.’
The second day of jury selection got underway less than 24 hours after one person who was rejected for the panel by prosecutors expressed concerns that rioters sympathetic to Floyd would attack his home and come after his wife and children if they learned of his identity.
State prosecutors used their first of nine peremptory challenges to strike ‘Juror #8’ – a military veteran from the National Guard who said that it was wrong to ‘second-guess [a police] officer’s decision.
‘I have a lot of respect for police… and I know they go through training,’ the prospective juror said.
On his questionnaire, the prospective juror wrote that he was concerned that in the aftermath of Floyd’s death, when riots and looting were rampant in Minneapolis, his friends moved out of a condominium downtown.
He also said that he and his wife have actively avoided going downtown since then, according to
When asked about the viral video in which Chauvin is seen pressing his knee against Floyd’s neck for more than eight minutes, the prospective juror responded that he had a ‘strong opinion’ about the clip, though he added that he believe he could put his opinion aside to examine the facts of the case.
National Guard troops were seen outside the heavily fortified courtroom in downtown Minneapolis on Tuesday
A protester is seen above holding signs in downtown Minneapolis on Tuesday – the first day of jury selection in Chauvin’s trial
Several protesters are seen in downtown Minneapolis on Tuesday to mark the start of Chauvin’s trial
The prospective juror wrote that while he does not support Black Lives Matter, he does believe the concept that ‘black lives matter.’
Prosecutors eventually decided to dismiss the juror after he said he feared a pro-BLM mob would come after his wife and children if they learned he served on the jury.
The prosecution is permitted to strike eight more jurors without giving a reason while the defense is permitted to strike 13 more.
On Tuesday, three jurors were selected: a white chemist who thinks BLM is ‘too extreme’ and hasn’t seen the Floyd video; a woman of color who’s related to a cop and thinks BLM has ‘turned into propaganda’; and a white man who works as an auditor.
The first juror picked on Wednesday, a man who works in sales management and grew up in a mostly white part of central Minnesota, acknowledged saying on his written questionnaire that he had a ‘very favorable’ opinion of the Black Lives Matter movement and a ‘somewhat unfavorable’ impression of the Blue Lives Matter countermovement in favor of police, yet ‘somewhat agreed’ that police don’t get the respect they deserve.
He said he agrees that there are bad police officers.
‘Are there good ones? Yes. So I don’t think it’s right to completely blame the entire organization,’ he told the court under questioning from Schleicher.
The questionnaire explores potential jurors’ familiarity with the case and their own contacts with police.
Ex-officers Derek Chauvin, Tou Thao, J. Alexander Kueng and Thomas Kiernan Lane are awaiting trial for the murder of George Floyd
Their answers have not been made public, and the jurors’ identities are being kept secret. Their racial backgrounds often aren’t disclosed in open court.
Floyd was declared dead on May 25 after Chauvin, who is white, pressed his knee against the black man’s neck for about nine minutes.
Floyd’s death sparked sometimes violent protests in Minneapolis and beyond, leading to a nationwide reckoning on race.
Chauvin and three other officers were fired. The others face an August trial on aiding and abetting charges. The defense hasn’t said whether Chauvin will testify in his own defense.
Schleicher used a peremptory challenge on Wednesday to remove from the panel a woman who has a nephew who’s a sheriff’s deputy in western Minnesota.
She said she was dismayed by the violence that followed Floyd’s death.
‘I personally didn’t see any usefulness to it,’ she said.
‘I didn’t see anything accomplished by it, except I suppose bring attention to the frustrations of the people involved. But did I see anything useful coming out of the burning of Lake Street and that sort of thing? I did not.’
Fatal shooting appeal that could delay Chauvin trial
Mohamed Noor (left) was convicted in 2019 of third-degree murder in the 2017 fatal shooting of Justine Ruszczyk Damond (right), an Australian woman who called 911 to report a possible sexual assault
The Derek Chauvin trial may be delayed until the outcome of an appeal by another former Minneapolis police officer is known.
Mohamed Noor was convicted in 2019 of third-degree murder in the 2017 fatal shooting of an Australian woman who called 911 to report a possible sexual assault.
His lawyers have launched an appeal because they say third-degree murder applies only when a defendant’s actions put multiple people at risk.
Chauvin’s attorneys will likely argue the same thing since he brought no harm to other bystanders and was not ’eminently dangerous to others.’
If the Supreme Court were to overturn Noor’s third-degree murder conviction, Chauvin’s charge could also be dismissed.
On July 15, 2017, Justine Damond called 911 to report a possible sexual assault in the alley behind her home.
Officers Matthew Harrity and Noor responded and, finding nothing, they prepared to leave when Harrity is startled by a loud noise near the squad car.
Noor, in the passenger seat, shoots past Harrity, striking Damond through the driver’s side window.
At trial, the jury convicted Noor of third-degree murder and manslaughter, and acquitted him on the more serious charge of second-degree intentional murder.
Noor filed a petition last month asking the Minnesota Supreme Court to overturn his conviction in the death of Justine Ruszczyk Damond, after a Court of Appeals panel upheld the jury’s decision.
The state’s highest court granted the petition just days later and agreed to hear the case in June.
Legal analysts said that it normally takes months for the Supreme Court to hear a case, but the expedited decision was made in light of the implications for the Chauvin case.
Some legal experts say the third-degree murder charge applies only when a defendant’s actions put multiple people at risk, but the appellate panel said it can apply when a defendant’s actions are directed at one person.
On July 15, 2017, Damond, a yoga teacher with dual American-Australian citizenship, called 911 to report a possible sexual assault in the alley behind her home
The judge in Chauvin’s case had dismissed a third-degree murder count last October, saying it didn’t apply because Chauvin’s actions were directed at Floyd alone.
But prosecutors are seeking to have it reinstated, saying the appellate decision shows the third-degree murder count can apply to Chauvin as well.
Noor claims his actions only targeted a single individual and did not harm anyone else except Damond.
His lawyer claims that since Noor’s actions only harmed a single individual, the third-degree murder charge clause, ‘an act eminently dangerous to others,’ would not apply in his case.
Chauvin’s attorneys will likely argue the same thing. Since Chauvin brought no harm to any other bystanders he was not ’eminently dangerous to others.’
If the Supreme Court were to overturn Noor’s third-degree murder conviction, Chauvin’s charge would also remain dismissed.
The Minnesota Court of Appeals last week ordered the judge in the Chauvin case, Peter Cahill, to reconsider adding a third-degree murder charge against the defendant.
A three-judge panel said the Hennepin County district judge Peter Cahill erred last fall when he rejected a prosecution motion to reinstate the third-degree murder charge against Chauvin.
The panel said Cahill should have followed the precedent set by the appeals court last month when it affirmed Noor’s third-degree murder conviction.
The appeals court sent the case back to Cahill for a ruling consistent with its ruling in the Noor case, giving the judge some leeway to consider other arguments that the defense might make against reinstating the charge.
‘This court’s precedential opinion in Noor became binding authority on the date it was filed. The district court therefore erred by concluding that it was not bound by the principles of law set forth in Noor and by denying the state’s motion to reinstate the charge of third-degree murder on that basis,’ the appeals court wrote.
Chauvin has the option of appealing the ruling to the Minnesota Supreme Court, which would force Cahill to delay the trial, said Ted Sampsell-Jones, a criminal law expert at the Mitchell Hamline School of Law.
But if Chauvin decides not to appeal, the professor added, ‘then Judge Cahill will almost certainly reinstate the third-degree charge.’
A reinstated third-degree murder count could increase the prosecution’s odds of getting a murder conviction.
Cahill ruled last October that third-degree murder under Minnesota law requires proof that someone’s conduct was ’eminently dangerous to others,’ plural, not just to Floyd.
Cahill said there was no evidence that Chauvin endangered anyone else and threw out the charge.
But the Court of Appeals rejected similar legal reasoning in Noor’s case, ruling that a third-degree murder conviction can be sustained even if the action that caused a victim’s death was directed at just one person.
The appeals court rejected the argument by Chauvin’s attorney that the Noor ruling shouldn’t have the force of law unless and until it’s affirmed by the Minnesota Supreme Court, which will hear oral arguments in Noor’s appeal in June.
Cahill used similar reasoning last month when he rejected the state’s initial motion to restore the third-degree murder count, prompting prosecutors to ask the Court of Appeals to intervene.
Three other former officers — Thomas Lane, J. Kueng and Tou Thao — are charged with aiding and abetting second-degree murder and manslaughter. They’re scheduled for trial in August.
Prosecutors want to add charges of aiding and abetting third-degree murder against them, but that question will be resolved later.
Officers Matthew Harrity and Noor responded and, finding nothing, they prepared to leave when Harrity is startled by a loud noise near the squad car. Noor, in the passenger seat, shoots past Harrity, striking Damond through the driver’s side window. Noor is seen above at his sentencing with attorneys Peter Wold (left) and Thomas Plunkett (right) in June 2019
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