Appellate Court Imposes Another Threat To Delay Start of Chauvin Criminal Trial   

A prior post discussed the order by the Minnesota Court of Appeals to the Hennepin County District Court to send its entire file to the appellate court and the threat that created to the scheduled start of the Derek Chauvin criminal trial on March 8.[1]

On February 23, the Court of Appeals imposed another threat to the scheduled start of that trial by setting a virtual hearing for the appeal next Monday, March 1 (at 1:00 p.m.) to hear arguments on whether or not a third-degree murder charge against Chauvin is permissible. It also ordered Chauvin’s attorney to file his response to this appeal this coming Friday (February 26).[2]

The latest order by the Court of Appeals also said that when a trial court denial of a motion to add a charge that arises from the same evidence for the current charges can have a “critical impact” meriting appellate review. “This is so because, if the prosecution is not permitted to charge a defendant in a single proceeding with all offenses arising out of a single behavioral incident, it is procedurally barred from doing so later after a conviction or acquittal on any of the offenses. Here, there is no dispute that the charge of third-degree murder arises from the same behavioral incident as the remaining charges.”  As a result, the Court of Appeals denied Chauvin’s motion to dismiss the appeal.

Joseph Daly, emeritus professor at Mitchell Hamline School of Law, said that however and whenever this appellate court rules, this development is likely to delay the Chauvin trial. If the third-degree charge is sustained, Chauvin’s attorney could argue for more time to prepare for trial and any denial of such a request would give Chauvin an argument for denial of due process. Moreover, whoever loses in the Court of Appeals could ask for review by the Minnesota Supreme Court, which would take months to resolve.

At the same time in a separate order,the Court of Appeals denied the prosecution’s request to expedite review of the trial court’s denial of third-degree murder aiding and abetting charges against the other three defendants (J. Alexander Kueng, Thomas Lane and Tou Thao). Instead, oral arguments on that aspect of the appeal will be heard at a later date.

The same legal issue is involved in the third-degree murder conviction of  another former Minneapolis police officer, Mohamed Noor, who on February 25 filed a petition for review by the Minnesota Supreme Court. If that court refuses to hear his appeal, the Court of Appeals decision in his case expanding the scope of such a charge will stand. [3]


[1] Has the Chauvin Trial  Been Delayed????, (Feb.  23, 2021).

[2]  Xiong, Court of Appeals will hear arguments to add third-degree murder charge in George Floyd  case, StarTribune (Feb. 23, 2021); Assoc. Press, Appeals court to weigh 3rd-degree murder charge for Chauvin, Wash. Post (Feb. 23, 2021); Order, State v. Chauvin, A21-0201 (Minn.. Ct. App. Feb. 23, 2021); Order, State v. Chauvin, Kueng, Lane & Thao. #!21-0201 & #A21-0202 (Minn. Ct. App. Feb. 23, 2021). Copies of the Court of Appeals documents can be obtained on the District Court of Minnesota website:

[3] Olson, Former Minneapolis cop Mohamed Noor asks state Supreme Court to hear his third-degree murder appeal, StarTribune (Feb. 25, 20210.


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As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

2 thoughts on “Appellate Court Imposes Another Threat To Delay Start of Chauvin Criminal Trial   ”

  1. Adding Third-Degree Murder Charge Improves Odds of Chauvin Conviction

    Several experienced Minnesota criminal lawyers have opined that the chances of convicting Derek Chauvin will be enhanced if Minnesota appellate courts approve adding a third-degree murder charge against him.

    Joseph Daly, emeritus professor at Mitchell Hamline School of Law, said the prosecution wants “to include all possible offense that could arise from these facts.” However, he added, the prosecution may be “afraid he’s not going to be found guilty of murder in the second degree, and [jurors] will go straight to manslaughter,” which seems not enough.

    Joe Friedberg said the prosecution is “scared . . . they can’t get a conviction” and thus want another charge. Moreover, Friedberg believes that District Judge Cahill had the correct reading of this crime’s requirements in rejecting the proposed amendment to add third-degree and that the contrary interpretation of that statute by a Court of Appeals panel was “pure nonsense.”

    Former Ramsey County Attorney Susan Gaertner did not think the prosecution’s seeking to add this charge against Chauvin indicated a lack of confidence by the prosecution. But “there is some risk in creating confusion [for] the jury if this charge is an option. All three charges require the jury to decide what was going through the defendant’s mind when the act occurred.”

    Another criminal defense attorney, Michael Padden, said he thought the third-degree charge was more appropriate for Chauvin. Otherwise, “you could very possibly have a hung jury because you could have one or more jurors who are confused, or you can have a compromised verdict where you have a conviction on manslaughter, which would be a terrible loss.”

    The prosecution’s seeking to add the third-degree charge also was supported by Washington County Attorney Pete Orput.


    Xiong, Adding third-degree murder to Derek Chauvin case improves prosecution’s odds, attorneys say, StarTribune (Feb. 25, 2021),

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