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Court puts third-degree murder back into play for 3 cops in George Floyd death

From left, former police officer Thomas Lane, J. Alexander Kueng and Tou Thao. (Hennepin County Sheriff's Office/TNS)

Third-degree murder is back on the table in the criminal cases against three former Minneapolis police officers charged in George Floyd’s death following a recent court ruling.

The Minnesota Court of Appeals issued an order Wednesday reversing a district court judge’s previous order denying a request from prosecutors to add third-degree murder against J. Alexander Kueng, Thomas Lane and Tou Thao.

The Court of Appeals’ ruling sends prosecutors’ request back to Hennepin County District Judge Peter Cahill for reconsideration, and allows him to hear more arguments from both sides before deciding whether to add the count in the three cases.

Kueng, Lane and Thao are scheduled to stand trial in March 2022. They are each charged with one count of aiding and abetting second-degree murder and aiding and abetting second-degree manslaughter.

Adding third-degree murder to the cases would likely increase the probability of a conviction against some of the former officers, said Joseph Daly, an emeritus professor at Mitchell Hamline School of Law.

“It’s going to be hard to convince a jury to convict any of these other three officers on second-degree,” Daly said, “but third-degree, there’s a likelihood that some of them could be convicted on that.”

Daly said adding the count would also likely give the defendants more motivation to entertain plea deals.

The issue has a long history: Former Minneapolis Derek Chauvin, who knelt on Floyd’s neck for more than nine minutes, was initially charged with third-degree murder last year. Kueng, Lane and Thao have never been charged with the count.

Last fall, Chauvin’s attorney filed a motion to dismiss the charge, which Cahill granted. But the count came back into play after a Court of Appeals ruling this past February that upheld a third-degree murder conviction in the unrelated case of ex-Minneapolis police officer Mohamed Noor.

Based on the Noor decision, the Minnesota Attorney General’s Office, which is leading the prosecution, asked Cahill to reinstate third-degree murder against Chauvin and to file it against the other three defendants for the first time.

Cahill denied the prosecution’s motions, writing in his order that the Noor decision was not yet precedent because of a window of time that allowed Noor to challenge the Court of Appeals decision by asking for a review by the Minnesota Supreme Court.

That prompted prosecutors to ask the Court of Appeals to intervene. The appellate court ruled in March that Cahill was wrong when he said the Noor ruling was not yet precedent and ordered him to apply it to Chauvin’s case.

Cahill added the charge back to Chauvin’s case. Jurors convicted Chauvin on April 20 of second-degree murder, third-degree murder and second-degree manslaughter. He was sentenced last Friday to 22 1/2 years in prison.

Cahill said in March that he accepted the Noor ruling as precedent he must follow. He defended his previous reasoning on the issue, saying the March appellate ruling “implies that this court disregarded plain language in the rules (governing court procedures), or, at worst, was too lazy to look up the rules. Neither was the case.”

Cahill said at the time that he diligently researched court rules but could not find clear guidance on whether a Court of Appeals ruling is precedent the moment it is issued or whether it only becomes binding after the expiration of the deadline to challenge such rulings. Noor’s attorney, Thomas Plunkett, asked the state Supreme Court to review the Court of Appeals’ February ruling; the Supreme Court heard oral arguments on the matter in June and has not issued a ruling on the matter. Plunkett also represents Kueng.

“We found silence, not plain language,” Cahill said in March of the court rules. “I think the Court of Appeals reaches too far by saying there is plain language in the rules. There’s silence.”

The appellate court “inferred” from that silence that its decisions are precedent upon immediate release, Cahill said at the time, adding that he acknowledges that the court has authority to determine when its decisions are precedential.

The Court of Appeals wrote in its Wednesday ruling that its decision in the Chauvin matter requires Cahill to reverse his order denying prosecutors’ request to add third-degree murder against Kueng, Lane and Thao. The court essentially reiterated that the Noor decision was precedential and that Cahill was wrong to deny the prosecution’s initial request based on that issue.

Chauvin, Kueng, Lane and Thao are also charged in federal court with violating Floyd’s civil rights. Trial dates in that case have not been announced.

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