Welcome back to our ongoing coverage of the Minnesota murder trial of Derek Chauvin, over the in-custody death of George Floyd. I am Attorney Andrew Branca for Law of Self Defense, providing guest commentary and analysis of this trial for Legal Insurrection.
As a reminder, I am “LIVE Parlering” the trial in real-time over at my Parler account, which you can find using my Parler handle: @LawofSelfDefense.
Before we dive into the substance of this morning’s proceedings, a brief list of characters in play during the trial, so we can keep track, especially as many of the streaming sources for the trial proceedings do not appear to be using name labels on screen:
The trial is presided over by Hennepin County Judge Peter Cahill. The lead prosecutor is Assistant Attorney General Matthew Frank, assisted by Special Attorney for the State Neal Katyal. The lead defense counsel is Attorney Eric Nelson, assisted by co-counsel Attorney Amy Vos. The defendant is, of course, Derek Chauvin—there is no word yet as to whether Chauvin is expected to testify in his own defense.
Today was planned to be the first day of jury selection for this trial, but instead the day turned into a non-starter. As I write this the trial court is adjourned until 1:30pm CT, at which point a determination will be made as to what, if anything, the trial court will be free to do in advancing this trial forward.
Until that determination is made, the trial, and jury selection, are effectively paused. Indeed, the jury pool has been sent home for today, so there will definitely be no jury selection occurring prior to tomorrow, if then.
The key cause of the hold-up is the uncertainty around the third-degree murder charge which the state wants to bring against Derek Chauvin, in addition to the second-degree murder and manslaughter charges on which he is currently charged.
Minnesota labels its various criminal offenses in a rather untraditional manner, so it’s worth looking at the actual criminal charges themselves.
With respect to the second-degree murder charge the relevant statute is § 609.19. Murder in the second degree, which is sub-divided into two major sections. Subdivision 1 covers intentional murders. Chauvin is not charged under this section.
Indeed, there is no claim whatever being made that Chauvin intentionally killed Floyd. I find it remarkable that the public narrative around Floyd’s death is one of purported racist police murder of a black suspect, but not even the prosecutors aggressively pursuing this case are willing to make the legal argument that Chauvin intended to kill Floyd.
Subdivision 2 of § 609.19 covers unintentional murders. It, too, consists of two parts. Chauvin is charged under the first of these; the second part applies to circumstances involving restraining orders and is not relevant to this case.
So, the relevant second-degree murder language relevant to Chauvin is found in § 609.19(2)(1), and it reads:
Subdivision 2. Whoever does either of the following is guilty of unintentional murder in the second degree and may be sentenced to imprisonment for not more than 40 years: (1) causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting;
So, the second-degree murder charge against Chauvin is premised on an underlying felony, which the state argues is the purported commission of third-degree assault by Chauvin upon Floyd.
Which naturally raises the question of what constitutes third-degree assault under Minnesota law, which we find at § 609.223 Assault in the third degree. This statute consists of three parts, only the first of which is relevant to Chauvin, and § 609.223(1) reads:
Subdivision 1. Substantial bodily harm. — Whoever assaults another and inflicts substantial bodily harm may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $ 10,000, or both.
In summary, then, in order to convict Chauvin of second-degree murder under the facts and legal arguments of this case, the state has to convince the jury beyond a reasonable doubt that Chauvin intentionally inflicted substantial bodily harm upon Floyd and that Floyd died as a result of that substantial bodily harm.
Further, the state would have to prove beyond a reasonable doubt that Chauvin committed this conduct without lawful justification, as justification would be a generalized defense against any use-of-force offense, including Chauvin’s use-of-force upon Floyd (e.g., that the use of force by Chauvin upon Floyd was justified as appropriate under the circumstances of making a lawful arrest of Floyd and/or of securing Floyd’s safety from harm, such as death by excited delirium).
Then there’s the second-degree manslaughter charge against Chauvin, which can be found at § 609.205. Manslaughter in the second degree. § 609.205 consists of 5 subsections, only the first of which is relevant to this case, and § 609.205 reads:
A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $ 20,000, or both:
(1) by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another;
In summary, then, in order to convict Chauvin of second-degree manslaughter under the facts and legal arguments of this case, the state has to convince the jury beyond a reasonable doubt that Chauvin negligently created an unreasonable risk of causing death or great bodily harm to Floyd, and deliberately disregarded that risk, with Floyd dying as a result (as well as disproving any raised justification defenses beyond a reasonable doubt).
Finally we get to the key issue in the hold-up of today’s proceedings, and that’s the third-degree murder charge the state wishes to bring against Floyd.
Interestingly, when Chauvin was initially charged in this case, those charges consisted of second-degree manslaughter, just discussed, and third-degree murder—Chauvin was not initially charged with second-degree murder at all. (The original charging instrument citing second-degree manslaughter and third-degree murder can be seen at the Law of Self Defense blog post of May 29, 2020: “NEWS: Officer Chauvin Charged with Murder of George Floyd.”)
Third-degree murder under Minnesota law can be found at § 609.195. Murder in the third degree. This statute consists of two parts, of which only the first is relevant to this case, and § 609.195(1) reads:
(a) 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.
In summary, then, in order to convict Chauvin of third-degree murder under the facts and legal arguments of this case, the state has to convince the jury beyond a reasonable doubt that Chauvin committed an act eminently dangerous to others, disregarded that danger with a depraved mind, and that Floyd died as a result (as well as disproving any raised justification defenses beyond a reasonable doubt).
Importantly, the traditional legal interpretation of this statutory provision has limited its application to circumstances in which the alleged danger created is a danger to people generally, and not a danger created to a specific individual.
Under long-standing Minnesota law, if the victim killed by dangerous conduct was specifically targeted then the appropriate murder charge would be second-degree murder, as described above. Imagine, for example, someone fired a shot in the general direction of the victim with the intent of frightening that victim but without intending to actually strike that victim, but the bullet nevertheless struck and killed the victim. The dangerous conduct was directed at that specific victim, that specific victim died as a result, and the appropriate charge under Minnesota law is second-degree murder.
The crime of third-degree murder under Minnesota law would obviously be entirely duplicitous of second-degree murder if it applied to the same circumstances, a danger created towards a specific individual, and in fact throughout Minnesota legal history it was not believed that third-degree murder was intended to apply to a danger created towards a specific individual.
Rather, third-degree murder was understood to apply when someone created a danger to the public generally, with no particular victim in mind or targeted, and then caused the death of some non-specific individual. Imagine, for example, someone driving a car on the public roads while extremely intoxicated and running over and killing a pedestrian in a crosswalk. That driver never intended harm to that particular individual, but their conduct created a deadly danger to the public generally, and results in the death towards that non-specific individual.
Two different sets of circumstances to which the two distinct degrees of murder under Minnesota law were intended to apply.
Indeed, so well-established is this distinction between second-degree and third-degree murder that when the Chauvin defense argued that the third-degree murder charge originally brought against him must be dismissed because there was zero evidence that Chauvin ever presented a danger to the public generally, and therefore third-degree murder was inapplicable as a matter of law, trial court judge Peter Cahill agreed, and hd did in fact dismiss that charge.
The state’s response was to then charge Chauvin with second-degree murder in place of the dismissed third-degree murder.
The lengthy history of legal decisions affirming this distinction between second-degree and third-degree murder under Minnesota law was recently upended, however, by a precedent-breaking decision handed down by the Minnesota Court of Appeals on this issue just past February 1, 2021. That decision is State v. Noor, 2021 Minn. App. LEXIS 131 (MN Ct. App. 2021).
As brief background, Mohamed Noor was a Minneapolis police officer who, along with his partner in their patrol car, responded to a report of a possible sexual assault occurring in an alley behind the home of Justine Ruszczyk, who had phoned 911 after hearing a ruckus.
When the two officers arrived, with Noor’s partner driving, they rolled through the alley and were apparently about to drive away when they were approached by Ms. Ruszczyk. As she neared the driver’s side of the patrol car, Noor pointed his pistol across his partner’s body and fired a single fatal shot into her abdomen.
Noor would be criminally charged and convicted of third-degree murder for this killing of Ms. Ruszcyzk. He appealed his conviction to the Minnesota court of appeals on various grounds. One of those grounds, relevant to our discussion here, is that third-degree murder was inapplicable to the facts of his case because his purportedly dangerous conduct specifically targeted Ms. Ruszcyzk rather than endangering the public generally—in other words, arguing for the traditional and well-established legal understanding of third-degree murder under Minnesota law.
The three-judge panel hearing Noor’s appeal would for the first time under Minnesota law hold that third-degree murder could apply to a case in which the risk created was not to the public generally, but rather was towards a specific individual.
Interestingly, the court of appeals was unanimous in denying Noor’s appeal on every other ground raised but split on this question of whether third-degree murder could apply to a danger created to a specific individual, with two judges voting for this novel “individual-specific” interpretation of Minnesota law, and the third judge (who wrote a lengthy dissent on this point) holding to the traditional and well-established legal understanding that third-degree murder applied to dangers that were generalized to the public and not specific to an individual.
When this novel interpretation of third-degree murder was handed down by this court of appeals decision on February 1, 2021, the prosecution in the Chauvin case saw a new opportunity to argue that Chauvin, too, should be charged with third-degree murder. After all, the court of appeals said doing so was OK even in the context of a danger created only to an individual and not to the general public, right?
The prosecution then asked the court of appeals to order the trial judge in the Chauvin case, Judge Peter Cahill, to re-impose the third-degree murder charge against Chauvin, on the grounds that the basis for having dismissed that charge earlier—that third-degree murder applied only to generalized dangers—no longer applied given the court of appeals decision in Noor.
The court of appeals didn’t order Judge Cahill to re-impose the third-degree murder charge outright, but it did ask him to re-evaluate whether the third-degree murder charge ought to apply given the Noor decision. This order occurred just this past Friday, March 5, the last day of court business before jury selection was to begin (today!) in the Chauvin case.
Hold on a minute, Chauvin’s defense team argued in response. First of all, that court of appeals decision in the Noor case is still subject to review by the Minnesota Supreme Court, and while that window for Supreme Court review is open the court of appeals ruling is not really final law in Minnesota. So, until the issue is legally finalized, Chauvin ought not be re-charged with third-degree murder.
In response, the prosecution this morning informed the judge that as far as they were concerned, so long as the legal issue of whether third-degree murder should apply to Chauvin was still in play, that meant that the matter was still before the appellate courts (the Court of Appeals and the state Supreme Court), and so long as the appellate courts still had jurisdiction of the issue, the trial court itself lacked jurisdiction on the issue.
In fact, the prosecution argued that unless certainty was achieved on the issue of third-degree murder in the Chauvin case, nothing substantive—including jury selection—should move forward, because the state ought to know whether third-degree murder was in play when they were participating in jury selection in the first place.
Judge Cahill appeared rather shocked at the argument that the entire trial be put on hold over this issue, especially given that the jury pool was already sitting at the courthouse waiting to undergo selection. He argued that the case could proceed on every issue other than third-degree murder, including jury selection.
Judge Cahill also recognized, however, that although that was his decision on the question, the prosecution had the option to appeal that decision back to the court of appeals. If the court of appeals said the whole trial had to be paused while third-degree murder was played out in the appellate courts—a process which could take weeks or months—then the trial would be paused.
Unless he was told to pause the entire trial, Judge Cahill intended to proceed, and if necessary simply add the charge of third-degree murder to the jury instructions at the close of the trial (lesser-included charges are routinely added late in trials in this manner).
After a short recess for the prosecution to consider its options, they informed the judge that they had, in fact, filed a motion with the court of appeals to suspend the proceedings pending the resolution of the third-degree murder issue, and were waiting now to hear back from the court of appeals.
And that, folks, is where things sit as I write this. Later this afternoon the court will come back into session, at which point everybody involved is hoping that the court of appeals will have provided some guidance as to the extent to which the trial court will be permitted to proceed with this trial of Derek Chauvin.
When we learn more, you’ll learn more!
In the meantime, I thought perhaps you might be interested in taking a look at the 14-page questionnaire that all prospective jurors were asked to complete earlier in this process.
The prospective jurors answers to those questions will assist both the prosecution and defense in deciding whether jurors should be excused for cause, as well as whether prospective jurors should be dismissed peremptorily (without cause having to be given). Incidentally, Judge Cahill has tripled the normal number of peremptory challenges permitted each side in this case, to 15 peremptory strikes for the defense and 9 for the state.
I should also mention that selected jurors will include 12 jurors and 2 alternates, all of whom will be kept under a “soft” sequester during the trial. That is, their identities will be concealed from the public during the trial, and they will be identified only as numbers during the court proceedings, but they will be permitted to return home each evening and then back to court each morning. During deliberations, however, the jurors are expected to be fully sequestered at the courthouse.
Until next time, stay safe!
Attorney Andrew F. Branca
Attorney Andrew F. Branca’s legal practice has specialized exclusively in use-of-force law for thirty years. Andrew provides use-of-force legal consultancy services to attorneys across the country, as well as near-daily use-of-force law insight, expertise, and education to lawyers and non-lawyers alike in the form of blog posts, video, and podcasts, through the Law of Self Defense Membership service. If this kind of content is of interest to you, try out our two-week Membership trial for a mere 99 cents, with a 200% no-question- asked money-back guarantee, here: Law of Self Defense Membership Trial.