Prosecution and Chauvin Dispute Adding Third-Degree Murder Charges in George Floyd Criminal Case     

The original complaint against Derek Chauvin of May 29, 2020, charged third-degree murder and second-degree manslaughter, but was immediately superseded on June 3 by a second criminal complaint adding a charge of second degree murder.[1]

In addition, on June 3 the prosecution filed complaints against the other three ex-officers charging aiding and abetting second-degree murder and second-degree manslaughter.[2]

On October 21, the Hennepin County District Court dismissed the third-degree murder charges against the four defendants, saying that “a third-degree murder charge can be sustained only in situations in which the defendant’s actions … were not specifically directed at the particular person whose death occurred.”[3]

On February 4, 2021, the State of Minnesota moved for leave to reinstate the third-degree murder charge against Chauvin and add an aiding and abetting charge for third-degree murder against the other three defendants in the George Floyd criminal cases. [4]

The basis for this motion was the Minnesota Court of Appeals’ February 1^st decision (2 -1) upholding the third-degree murder conviction of Mohamed Noor, another Minneapolis policeman for the 2017 killing of an Australian woman in an alley behind her home in south Minneapolis. The majority opinion said the “reckless nature” of a defendant’s act can establish the “depraved mind” requirement for third-degree murder and that state law allows a third-degree murder conviction even when conduct is directed at a single person; the dissent disagreed with this reading of Minnesota law. [5]

On February 8, Chauvin submitted a brief opposing that motion.for the following reasons:[6]

1. The Court of Appeals opinion in Noor is not precedential authority. Under Minnesota Rules of Appellate Procedure 136.02 , such decisions do not become final until at least 30 days after the issuance of the opinion and if there is a subsequent petition for further review by the Minnesota Supreme Court, the Court of Appeals decision is stayed until the Supreme Court rejects any such appeal or rules on the merits, and Noor’s attorney (who also is counsel for Kueng in the Floyd cases) intends to ask the Supreme Court for such review. Thus, the Court of Appeals decision in Noor is not precedential.
2. Contrary to the recent Court of Appeals Noor decision, Minnesota Supreme Court precedents establish that the crime of third-degree murder requires commission of an act “without a special design upon the particular person or persons with whose murder the accused is charged.” Here there is no such general intent.

Thus, we all wait to see what happens in the Noor case and its impact on the issue of reinstating third-degree murder charges against Chauvin and the other three defendants.

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[1] The Criminal Complaint Against Derek Chauvin Over the Death of George Floyd, dwkcommentaries.com (June 12, 2020).

[2] The Criminal Complaints Against the Other Three Policemen Involved in George Floyd’s Death, dwkcommentaries.com (June 14, 2020).

[3] Court Sustains Most Charges in George Floyd Criminal Cases,  dwkcommentaries.com (Oct. 23, 2020).

[4] Olson, Prosecutors in George Floyd case want to reinstate third-degree murder charges against four officers, StarTribune (Feb. 4, 2021);

Motion To Reinstate Third-Degree Murder Charge Or, in the Alternative, To Amend the Complaint. State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Feb. 4, 2021).

[5] Olson, Divided Court of Appeals narrowly upholds murder conviction of Mohamed Noor, StarTribune (Feb. 1, 2021).

[6] [Defendant’s] Memorandum of Law Opposing State’s Motion To Reinstate Third-degree Murder Charges, State V. Chauvin, Court File NO. 27-CR-20-12646 Feb. 8, 2021); Xiong, Derek Chauvin’s attorney pushes back on proposed third-degree murder count in Floyd case, StarTribune (Feb. 8, 2021).