Derek Chauvin’s defense attorney filed a memorandum Monday opposing the prosecution’s motion to reinstate a third-degree murder charge.
Last week, the prosecution in the case against the former Minneapolis police officers charged for George Floyd’s death filed a motion asking Hennepin County Judge Peter Cahill to reinstate a third-degree murder charge against Chauvin. The motion also asked to add third-degree murder charges for the other former officers: Thomas Lane, J. Alexander Kueng and Tou Thao.
On June 3, Chauvin was charged with second-degree murder, third-degree murder and second-degree manslaughter for the May 25 death of Floyd.
Lane, Kueng and Thao were charged with aiding and abetting second-degree murder and aiding and abetting second-degree manslaughter. Chauvin’s third-degree murder charge was later dropped because Cahill determined that there was no evidence that Chauvin’s actions were “specifically directed at persons besides George Floyd,” according to last week’s motion written by prosecutor Matthew Frank.
Last week, the Minnesota Court of Appeals upheld the third-degree murder conviction against Mohamed Noor, the former Minneapolis police officer convicted for the 2017 fatal shooting of Justine Ruszczyk Damond. Noor is serving a 12-year prison sentence for shooting Damond, an Australian woman who had called 911 to report a possible sexual assault. The Court of Appeals said in its ruling that “a conviction for third-degree murder … may be sustained even if the death-causing act was directed at a single person,” Frank wrote.
However, Chauvin’s defense attorney Eric Nelson argued in his memorandum Monday that the Noor case lacks precedential authority and asks Cahill to deny the prosecution’s motion.
“The State has deliberately turned a blind eye to actual binding precedent which clearly establishes that Noor is not, in fact, precedential,” Nelson wrote.
Nelson added that Minnesota Court of Appeals orders do not become final until at least 30 days after they are issued, which is the time a party is allowed to petition the ruling to the Minnesota Supreme Court for further review. Additionally, Minnesota Court of Appeals decisions do not become precedential or binding on lower courts until the judgment in the case has become final, he wrote.
“If neither party petitions for further review, judgment will not be final — and the decision will not acquire precedential authority—until at least March 3, 2021. At best, the State’s motion is several weeks premature,” Nelson wrote.
Nelson added that Noor’s attorney, Thomas Plunkett — who is also representing Kueng — has indicated that he intends to file a petition for further review in the Noor case.
“This means that the court of appeals’ decision may not become final and acquire precedential authority until May 2, 2021, which is the date by which the supreme court would have to grant or deny the petition,” Nelson wrote.
Nelson also argued in his memorandum that the Noor case is different from Chauvin’s, and that there is not enough probable cause to support a third-degree murder charge.
Nelson cites previous cases which have determined that third-degree murder is reserved for cases where the act was committed in a “reckless or wanton manner,” with the “knowledge that someone may be killed and with a heedless disregard of that happening.”
Nelson argued that Chauvin’s actions were not reckless or wanton and were only directed at Floyd.
In the Noor case, Nelson wrote, Noor fired his weapon inside a police squad car across his partner and through the lowered window into the dark toward a “silhouette,” which was reckless and wanton.
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February 09, 2021 at 02:38AM
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Chauvin’s attorney opposes prosecution’s motion to reinstate third-degree murder charge - TwinCities.com-Pioneer Press
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