Will Derek Chauvin Third-Degree Murder Charge Be Reinstated?
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Minnesota Supreme Court Just Denied Derek Chauvin’s Petition to Resolve Whether He’ll Face Another Charge — Here’s What It Means

George Floyd Trial

The Minnesota Supreme Court on Wednesday denied a request by Derek Chauvin’s attorneys to clarify whether third-degree murder charges can be legally reinstated against the former police officer currently on trial in the alleged May 2020 murder of George Floyd.

The state supreme court’s one-page order granted motions by two out-of-state attorneys to be part of the government’s legal team but otherwise denied the relief Chauvin’s attorney requested.

“IT IS FURTHER ORDERED that the petition of Derek Michael Chauvin for further review be, and the same is, denied,” the order tersely stated.

The order clears the way for Chauvin’s trial judge, Peter Cahill, to decide on his own whether or not to allow prosecutors to resuscitate the third-degree murder charge Chauvin previously faced. But the order effectively wipes away the original primary rationale Cahill used to jettison the charge back on Feb. 11.

Several layers of previous decisions in the Chauvin case and in a similar case must be recapped to understand the complexity of the matter. The timeline is important.

On May 29, 2020, prosecutors charged Chauvin with both third-degree murder and second-degree manslaughter. On June 1, the Hennepin County Medical Examiner’s Office privately shared Floyd’s autopsy with prosecutors. On June 3, prosecutors added a second-degree felony murder charge against Chauvin. On June 4, Chauvin’s defense says the medical examiner’s office released Floyd’s autopsy report to the public. (It was actually released one day earlier; Law&Crime originally reported its contents on June 3.) The report listed a series of factors which caused Floyd’s death, including “cardiopulmonary arrest” and “law enforcement subdual, restraint, and neck compression.” The autopsy also detected fentanyl and methamphetamine in Floyd’s system. The fentanyl levels were nearly four times higher than those observed in some other individuals who died from an overdose, the defense has pointed out.

Due to the complexity of the official cause of death, on August 28, 2020, Chauvin asked a trial judge to dismiss the cases against him for lack of probable cause. On October 21, 2020, the district court agreed to dismiss only the third-degree murder charge. The other charges remained. The trial judge said in October said the state would have “five days” to appeal, court papers indicate; the state did not do so.

Rather, the state waited until February 4, 2021, to attempt to reinstate the third-degree murder charge.

Chauvin’s defense rationed that the state waited so long because an appeals court decision in another case involving a police shooting opened the door for the third-degree murder charge to be reinstated against Chauvin. Here’s the defense’s explanation as it is contained in Minnesota Supreme Court documents (citations omitted):

The State’s purported impetus for its motion was the court of appeals’ decision in State v. Noor, issued on February 1, 2021, and written by the Honorable Michelle Larkin. Noor, in a divided panel, addressed the propriety of a third-degree murder charge in the context of a Minneapolis police officer’s shooting of an unarmed citizen. The State contended that Noor was “precedential,” and the district court was, therefore, bound to reconsider its order dismissing the third-degree murder charge more than three months prior. The district court, on February 11, 2021, denied the State’s motion, concluding, among other things, that Noor was not yet binding precedent.

The Noor decision involved the shooting of Australian national Justine Ruszczyk Damond by Minneapolis Police Officer Mohamed Noor in 2017. On February 1, the Minnesota Court of Appeals, the state’s intermediate appellate court, ruled that Noor’s third-degree murder conviction could stand. However, the three-judge panel was divided, and the Minnesota Supreme Court, the state’s highest court, decided that it wants to review the decision. Arguments before the Minnesota Supreme Court in Noor’s case are currently scheduled for June.

Noor’s conviction hangs in the balance, and the implications for Chauvin are striking. Chauvin’s prosecutors, emboldened by the appeals court’s decision in Noor, were eager to ask Chauvin’s judge to revisit third-degree murder as a potential charge against Chauvin. Chauvin’s attorneys, uncomfortable by the reality that the Minnesota Supreme Court could overturn the appeals court’s decision in Noor, are nervous about the unsettled nature of the law. The defense is also likely nervous about having to fight a count which is easier for prosecutors to prove at trial than the other, higher counts Chauvin still faces.

The core legal issue right now is whether the Noor opinion was “precedential” the minute the Court of Appeals published it on February 1.  The Chauvin defense argues that the Noor opinion only becomes binding precedent applicable to their own case after the supreme court either (1) denies review (which did not happen) or (2) issues a final ruling on the matter (which also has not happened — yet). The Chauvin defense claims there is some case law on point to support its position that the Noor case does not yet apply to Chauvin’s ongoing trial: several Minnesota Court opinions, including State v. Collins, state that “decisions do not have precedential effect until the deadline for granting review has expired.”

The Court of Appeals later said its Noor opinion became binding precedent the minute it was issued on February 1. Chauvin’s attorneys appealed the question to the state supreme court — which just declined to hear it.

Remember: it’s entirely possible that the Minnesota Supreme Court could flip the underlying Court of Appeals opinion that upheld Noor’s third-degree murder conviction. And that’s what Chauvin’s attorneys partially argued: Noor is not procedurally settled. Plus, they claimed that Noor is a bizarre decision unto itself which is arguably out of line with other, previous Minnesota decisions (citations omitted):

The court of appeals decision in Noor, a case that is procedurally and factually far different from the present matter, relied heavily on this Court’s decision in State v. Mytych. This Court subsequently cautioned that Mytych was not a “typical application of [third-degree murder].” The dissent in Noor noted as much. In Noor, the court of appeals also distinguished five decades of this Court’s binding third-degree murder jurisprudence to reach its decision.

Defense attorneys must now attempt to argue their way out of a third-degree murder charge despite Noor saying that such a charge is entirely appropriate in a very similar case. Noor significantly narrows — or more likely closes — the window through which Chauvin’s attorneys must pass if they hope to be victorious.

Refusing to dally through the big-picture problems presented by the defense, prosecutors working with the Minnesota Attorney General’s Office told the state Supreme Court that that appellate court decisions such as Noor are binding once issued.

“It is a bedrock principle of judicial review that a lower court must follow a higher court’s authoritative interpretation of the law,” the state argued. “In this case, however, the District Court did not adhere to that simple principle. Instead, the District Court held that it could refuse to abide by a precedential Court of Appeals decision so long as the judgment was not yet final. It declined to follow that precedential Court of Appeals decision because it found the majority opinion ‘unpersuasive,’ and agreed instead with the dissent.”

The state also accused Chauvin’s team of misinterpreting or twisting the law surrounding whether and when decisions become binding upon lower courts (citations omitted):

Petitioner’s entire theory for review rests on a single line of dictum in a single Court of Appeals decision, State v. Collins [further citation omitted]. But the opinion below spends three pages analyzing Collins and concludes that Collins did not radically depart from longstanding principles of stare decisis. Indeed, the quoted sentence is dictum. Collins stands for the unremarkable proposition that if this Court remands a Court of Appeals decision “for further consideration in light of an intervening supreme court opinion,” the remanded opinion is not binding precedent.

In the state’s view, “[t]here is no need for [the Supreme] Court to intervene”:

In case after case, the Court of Appeals has followed a consistent practice: It gives prior published opinions immediate precedential force even where this Court might review—or had actually granted review of—the earlier decision. The decision below comports with that practice.

The state asked the Minnesota Supreme Court to either “deny the [Chauvin] Petition immediately” or, in the alternative, to “set the case for oral argument at the earliest available moment.”

The Minnesota Supreme Court agreed to deny the petition.

The bottom line is that the third-degree murder charge is important, and that’s why prosecutors are pressing so feverishly to include it. Jurors in complicated cases are widely known to compromise on lesser charges if the top charges sought by prosecutors seem like too much of a stretch. Prosecutors prefer to give jurors some wiggle room to convict; they believe at least some conviction is better than a full-scale acquittal. Defense attorneys are skilled at tearing apart the top charges their clients face at trial.

The decision on whether to allow prosecutors to re-introduce the third-degree murder charge now rests once again with Judge Cahill, the trial judge.

Cahill wrote on February 11 that “if the Court of Appeals’ published . . . Noor opinion is precedential, this Court is . . . duty-bound to follow it and grant the State’s motions to reinistate” the third-degree murder charge against Chauvin. The Minnesota Supreme Court’s decision now leaves in place the Court of Appeals’ previous decision in that Noor is, indeed, precedent for Chauvin. But Cahill also wrote that he believed his “earlier decision . . . dismissing” the third-degree murder charge “was correct” — and that “nothing in the majority opinion in Noor persuades” him otherwise.

Specifically, Cahill criticized the Noor intermediate court’s opinion for ignoring a string of state Supreme Court opinions to the contrary. Per Cahill:

In a nutshell, this Court agrees with the analysis in the Noor dissent. For that reason, the Court declines to adopt the Noor majority opinion’s holding that a Murder in the Third Degree charge may be submitted to a jury under a fact pattern in which the death-causing act was solely directed at a single person and was not eminently dangerous to others, as is the case here.

And that is precisely the issue that will continue to vex Chauvin’s case until Noor is fully decided by the state supreme court:  can Minnesota’s third-degree murder charge apply to a crime aimed at but one alleged victim? The third-degree murder statute itself reads as follows (emphasis added):

Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.

See the issue? In Chauvin’s case, only one person was the victim. The same was true in Noor, but the appeals court held in that earlier police shooting that it didn’t matter. The law “does not require that more than one person be put in jeopardy,” the Noor court held, in order for a third-degree murder conviction to stick.

The State Supreme Court has yet to weigh in on Noor‘s holding, but it will do so this summer.

Minnesota Attorney General Keith Ellison (DFL) was pleased with Supreme Court’s decision to toss Chauvin’s request for immediate clarity on whether Noor could, in essence, be ignored by Judge Cahill until it is fully settled.

“The Supreme Court was right to decline Mr. Chauvin’s petition for review,” he said in a statement obtained by Law&Crime. “The Court of Appeals ruled correctly; therefore, there was no need for the Supreme Court to intervene. We believe the charge of 3rd-degree murder is fair and appropriate. We look forward to putting it before the jury, along with charges of 2nd-degree unintentional murder and 2nd-degree manslaughter.”

Read the court’s order and the previous arguments from both sides below:

Minnesota Supreme Court Ord… by Law&Crime

Derek Chauvin’s Petitio… by Law&Crime

State of Minnesota’s Re… by Law&Crime

[image via screen capture from the Law&Crime Network]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University.  He is a former anchor and executive producer for the Law&Crime Network and is now a Senior Editor for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only.  You should not rely on it for legal advice.  Reading this site or interacting with the author via this site does not create an attorney-client relationship.  This website is not a substitute for the advice of an attorney.  Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.