Oh, great. Prosecutors got their wish at the Minnesota Court of Appeals this morning, winning an appeal that would allow them to argue for reinstatement of third-degree murder charge against Derek Chauvin. However, that could force a postponement in the trial over the death of George Floyd and upend the city’s preparations for security:
The court ruled that its Feb. 1 ruling in an unrelated third-degree murder case is precedential, and overturned a ruling by Hennepin Count District Judge Peter Cahill that denied charging Chauvin with the count. The case has now sent the case back to Cahill for consideration of adding the charges. …
The ruling comes as Chauvin prepares to go on trial next Monday on charges of second-degree murder and manslaughter, and four days after the Court of Appeals heard arguments on the issue. It’s unclear, what, if any impact the ruling could have on the trial’s start date.
Why would it necessitate a delay if the facts and evidence have been available to both sides? For one thing, two attorneys tell the Star Tribune, escalating the charge requires at least a rethink of strategy. There’s more to it than chess, though:
A legal scholar and attorney have said it could cause a delay if Chauvin’s attorney, Eric Nelson, asks the Minnesota Supreme Court to review the ruling, or, if Nelson invokes his client’s constitutional rights to a fair trial and argues that he needs more time to prepare for the added count.
“If Eric Nelson is handed — one week before trial — a new charge he has to deal with, that’s pretty difficult,” Mitchell Hamline School of Law emeritus professor Joseph Daly said in an interview before the ruling was issued. “You have to rethink almost your entire approach. You have to rethink your theory of the case. It’s like a chess match.”
It’s pretty complicated indeed. Each different charging level in homicides has specific conditions, and the defense has to have time to prepare to test those conditions. The precedent cited by the appellate court here also had a similar issue. Mohammed Noor got charged with both second- and third-degree murder in the Justine Damond shooting; the third-degree charge ended up being the fallback for the jury, which failed to convict on the second-degree charge. The appellate court upheld that added charge, which is the precedent they cite here as well.
That’s the risk for Chauvin if prosecutors add the charge to his indictment, too. Second-degree murder requires prosecutors to prove an underlying felony besides Floyd’s death, whereas third-degree murder only requires proof of a depraved indifference to life. Without that charge, the two possibilities for sentencing would be between 25 years for the second-degree murder charge or five years for manslaughter. Adding the third-degree charge gives prosecutors — and jurors — an option for splitting the difference if prosecutors can’t prove an underlying felony. As another Hamline professor noted earlier in the week, prosecutors “want to have as many shots at the apple as they can.”
Accordingly, the defense will have a tougher time dealing with this additional charge. If the court doesn’t postpone to allow for adequate time to develop a defense against the intermediate charge, Chauvin’s team will have a pretty good case for appeal if the jury ends up convicting on the third-degree charge.
The appellate ruling sends a pretty clear signal to Judge Cahill that prosecutors have the right to amend the indictment, even at this stage. Given that he’s already been skeptical on that point, Cahill would almost certainly go out of his way to allow for the defense to get more time to prepare. And that, by the way, would apply to the other trial, as prosecutors also want to add charges relating to abetting third-degree murder against the other three defendants in their separate trial.
It seems likely, therefore, that the girding of the civic loins will have been for naught — at least for now. At least we all got some practice at it.