Minnesota Supreme Court Hears Argument About Scope of Third-Degree Murder Statute

On June 9, the Minnesota Supreme Court heard arguments about the scope of Minnesota’s third-degree murder statute, which provides as follows:

”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.” (Minn. Stat. sec. 609.195 (a).)

These arguments were in the appeal of Mohamed Noor, a former Minneapolis policeman, for his conviction of that crime for the killing in 2017 of  Justine Damond in south Minneapolis and sentenced for same to 12.5 years in prison. The central issue of this appeal was whether this statute applied to a defendant whose actions were directed at only one, specific person.[1]

Noor’s attorney, Caitlinrose Fisher, argued that the statute’s language as well as case law “requires that a defendant’s actions must be directed at more than one person”  and that this law was meant only for such indiscriminate killings.

The prosecutor for Hennepin County, Jean Burdorf, however, argued that nearly all killings by police officers are directed at a specific person and if this statute is interpreted not to apply to such killings, then there could be no such prosecutions under this statute. Noor’s attorney basically agreed, saying, “’It would be very hard to imagine’ that an officer’s “split-second reaction to a perceived threat” would count as a ‘depraved-mind murder.”

Fisher, however, added that other charges, such as manslaughter, could be appropriate in some such cases and that Noor was not contesting his conviction for second-degree manslaughter and urged the Supreme Court to remand the case to the trial court for resentencing on that count with a likely sentence of four years.

The Supreme Court’s decision in this case is directly on point to Derek Chauvin’s conviction for third-degree murder of George Floyd even though his actions were directed at only one individual, namely George Floyd. [2]

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[1] Karnowski (AP), Minnesota 3d-degree murder law at issue in ex-cop’s appeal, StarTribune (June 9, 2021); Killing of Justine Damond, Wikipedia.

[2] Karnowski (AP), EXPlAINER: Noor ruling could have impact for other ex-cops, StarTribune (June 9, 2021).

 

 

Derek Chauvin Trial: Week One

March 8-12 marked the first week of the criminal trail of Derek Chauvin, the former Minneapolis police officer accused of second-degree murder and second-degree manslaughter for the death of George Floyd. This recap will open with the trial court’s reinstatement of the third-degree murder charge and then discuss the parties selection of 14 jurors, two of whom would be alternates. Then this recap will conclude with the March 12th announcement that the City of Minneapolis had reached an historic settlement agreement with the Floyd family over its civil claims for damages, which may have an impact on the Chauvin  and the other criminal cases against the other ex-police officers accused of aiding and abetting Chauvin’s alleged crimes.

Reinstatement of Third-Degree Murder Charge [1]

On March 11, Hennepin County District Court Judge Peter Cahill decided that the third-degree murder charge would be reinstated after the Minnesota Court of Appeals had rebuked his previous refusal to follow the majority opinion of a three-judge panel of that appellate court’s upholding the third-degree murder conviction of another former Minneapolis policeman, Mohammed Noor. 

Judge Cahill said he was “duty bound” to accept the appellate court’s ruling and its interpretation of the relevant statute as covering “single acts directed at a single person.” Moreover, “it would be an abuse of discretion not to grant the motion” to reinstate the charge.

Rachel Paulose, former U.S. Attorney for the District of Minnesota and now a professor at the University of St. Thomas Law School in Minneapolis, says the prosecution correctly asserted this charge since Chauvin threatened to harm witnesses who attempted to intervene to provide medical help to Floyd in addition to the harm to Floyd caused by the chokehold on the latter’s neck. Nevertheless, this additional charge carries the risk that the Minnesota Supreme Court in the pending case of the third-degree murder conviction of another former Minneapolis policeman, Mohammed Noor, might interpret this crime’s requirements more narrowly and enable Chauvin to escape criminal liability if this is the only charge on which he is held guilty at trial.

Minnesota Standards for Potential Jurors [2]

Minnesota Rule of Criminal Procedure 26.02, subd. 1 provides that a county’s jury list shall be “composed of persons randomly selected for a fair cross-section of qualified county residents.”

Rule 26.02, sub. 5(1) then provides 11 specified grounds for challenging a potential juror “for cause.” The most relevant one for the Chauvin trial appears to be “1. The juror’s state of mine—in reference to the case or to either party—satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the challenging party.” Subd. 5 (3) then goes on to say, “If a party objects to the challenge for cause, the court must determinate the challenge.” 

First Week of Chauvin Jury Selection [3]

In preparation for the task of selecting jurors in such a case of wide importance and publicity, the trial court earlier had submitted to potential jurors a 14-page questionnaire with questions about race, policing, martial arts and podcasts.” That court also had determined that Chauvin would have 15 preemptory challenges (8 of which were used this week); the prosecution, only 9 (five of which were used this week).

By the end of the week, seven people had been selected for this jury, five men and two women. Four are white and three are people of color: one black man in his 30’s, one biracial woman in her 20’s, one Hispanic man in his 20’s, one white woman in her 50’s, a white man in his 20’s and two white men in their 30’s. Six of them said they held “a somewhat favorable view of the Black Lives Matter  movement” although some said that view was more for its concept, not its tactics or politics. A jury consultant said “asking about Black Lives Matter and Blue Lives Matter gave lawyers a concrete way to frame conversations about otherwise uncomfortable topics.”

According to Wall Street Journal reporters, during this first week lawyers for both sides “often focused their questioning on Black Lives Matter, Blue Lives Matter and how jurors answered . . . [the court’s] questionnaire answered a questionable item about ‘defunding the Minneapolis Police Department.” This was seen by the reporters as the lawyers attempting to discern “whether potential jurors can put aside their personal opinions while evaluating evidence presented in court—though lawyers haven’t always been swayed by such pledges.”

The founder and chief organizer of Black Lives Matter Minnesota told the Wall Street Journal that he was encouraged that some of initial seven jurors held a positive view of this group while disappointed that the only black individual chosen so far was an immigrant who came to the U.S. more than a decade ago, rather than someone whose ancestors “went through slavery, Jim Crow and the Civil Rights era and who understands the history of our relationship with the police.”

Another issue arose this week over “spark of life” testimony allowed by a Minnesota statute to humanize the deceased victim. The Judge said that he would allow such witnesses to speak about how much they loved Mr. Floyd, but that if they started talking about his character,, it would “open the door’ for the defense to introduce evidence of his criminal history, which so far has been barred by the court.

As someone who only watched a few minutes of the questioning of the prospective jurors (the process of voire dire) and who saw only the questioning by Chauvin’s attorney, Eric Nelson, this blogger was impressed by his logical and conversational tone and maintenance of a straight face and thought that the prospective jurors probably would believe he was someone who deserved to be listened too during the trial. (After retiring from the practice of law, I was summoned for jury duty and was once a potential juror in a civil case who was very annoyed with the manner of one of the attorneys posing questions to the panel; I was eliminated as a juror as I expected because very few, if any, trial lawyers would want to have a lawyer as a juror.)

Settlement Between City of Minneapolis & Floyd Family [4]

On Friday, March 12, Minneapolis city officials and lawyers for the Floyd family publicly announced that they had agreed to settle the latter’s civil lawsuit for money damages with the city’s payment of $27 million.

Mayor Jacob Frey called it a milestone for the city’s future and a reflection of “a shared commitment to advancing racial justice and a sustained push for progress.” Indeed, Frey said the city would implement major policy changes in the pursuit of racial justice. The city’s coordinator, Mark Ruff, added that with cash reserves, officials were confident that this agreement would not lead to an increase of the city’s property taxes.

Ben Crump, the lead lawyer for the family said it would set an example for other communities: “After the eyes of the world rested on Minneapolis in its darkest hour, now the city can be a beacon of hope and light and change for cities across America and across the globe.” Crump also said that this settlement “sends a powerful message that Black lives do matter and police brutality against people of color must end.” the family had pledged to donate $500,000 of the settlement to “lift up” the neighborhood around the site of the killing of Mr. Floyd. And Floyd’s brother pledged to use some of the money to help other struggling Black communities.

Some commentators thought this agreement might make it even harder to seat an impartial jury. A former city chief public defender thought the timing of this agreement “could hardly be worse” for the criminal case against Chauvin and his lawyers might even ask for a mistrial if potential or already chosen jurors saw the agreement as the city’s acknowledgment that his actions were inappropriate.

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[1] Paulose, Opinion: The third-degree murder charges against Derek Chauvin carry worthwhile risks, Wash. Post (Mar. 12, 2021); Bogel-Burroughs, Derek Chauvin will now face a third-degree murder charge, N.Y. Times (Mar. 11, 2021); Court of Appeals Reverses District Court’s Refusal To Follow Precedent on third-Degree Murder Charge Against Derek Chauvin, dwkcommentaries.com (Mar. 5, 2021).  Derek Chauvin again charged with third-degree murder, StarTribune (Mar.  11, 2021); Bailey, Derek Chauvin trial judge reinstates third-degree murder charge in the death of George Floyd, Wash. Post (Mar. 11, 2021)

[2] Minn. Rules of Criminal Procedure 26.02, subdivisions 1, 2(3), 5(1), 5(3);Court’s Questionnaire for Prospective Jurors in George Floyd Criminal Cases, dwkcommentaries.com (Dec. 23, 2020).

[3] Dewan & Arango, What Are the Question for Potential Jurors in the Derek Chauvin Trial?, N.Y. Times (Mar. 7 & 11, 2021);  Levinson, Jury selection begins in Derek Chauvin’s trial in the death of George Floyd. Here’s what to expect, CNN.com (Mar. 11, 2021); Xiong & Walsh, StarTribune (Mar. 12, 2021); Bailey, Hints of strategy and new revelations in first week of Derek Chauvin murder trial, Wash. Post (Mar. 15, 2021).

[4] Bogel-Burroughs & Eligon, George Floyd’s Family Settles Suit Against Minneapolis for $27 Million, N.Y. Times (Mar. 12, 2021); Bailey & Olorunnipa, George Floyd’s family to receive recored $27 million in settlement approved by Minneapolis city council, Wash. Post (Mar. 12, 2021); Barrett & Winter,George Floyd Family Reaches $27 Million Settlement with Minneapolis, W.S.J. (Mar. 12, 2021). Here are summaries of the federal civil complaint by the Floyd family against the City of Minneapolis from dwkcommentaries.com: George Floyd’s Family Sues City of Minneapolis and Four Ex-Officers Involved in His Death (July 16, 2020); George Floyd Family’s Complaint Against City of Minneapolis Over His Death: Count II (July 18, 2020); George Floyd Family’s Complaint Against City of Minneapolis Over His Death: Count III (July 19, 2020).