MINNEAPOLIS — Thursday, March 11
- Judge Peter Cahill reinstates third-degree murder charge against Derek Chauvin in death of George Floyd
- Judge says his ruling does not apply to three other former officers
- Six jurors have been seated as of end of day Thursday, eight more needed for jury
- Three jurors are white, three are people of color
- Jury selection to resume at 9 a.m. Friday
Judge Peter Cahill has reinstated a third-degree murder charge against Derek Chauvin in the May 2020 death of George Floyd.
Chauvin was already charged with second-degree murder and second-degree manslaughter, and jury selection started Tuesday in the high-profile trial, which is being live-streamed across the globe.
Chauvin's defense team had asked the judge to drop the charge for lack of probable cause, and he agreed. Then on March 5, the Minnesota Court of Appeals said that was an error, and that the charge should be reconsidered.
The defense asked the Minnesota Supreme Court to review but in a Wednesday afternoon denial, the state's high court indicated it would not take up the issue. Hennepin County District Judge Peter Cahill heard arguments on the charge Thursday morning before ruling that the third-degree murder charge should be reinstated. Since the defense did not appeal, jury selection will continue moving forward as scheduled.
Meanwhile, six jurors have been selected and another eight need to be chosen. No matter how long jury selection takes, Judge Cahill has said opening arguments will not start until March 29.
Jury selection ended for the day Thursday with a woman who told the judge she could not deliver a fair and impartial verdict in the Derek Chauvin trial.
She said after seeing the bystander video of the moments leading up to George Floyd's death, she thinks "things could have gone differently" and does not believe she'll be able to set that opinion aside. She said the video has impacted her life and she has begun volunteering with a nonprofit as a result.
After some further questioning from the judge and the attorneys, the woman was released. Judge Peter Cahill thanked her for her honesty. "The only thing a juror can do wrong is to not be honest," he said. "I really appreciate it when jurors reflect on their own thoughts about whether they can truly be fair and impartial on a case."
Since the last juror yet to be questioned had been allowed to go home for the day, court ended a bit early. Jury selection will resume at 9 a.m. Friday.
The prosecution issued a Batson challenge when the defense dismissed a Hispanic man from jury consideration.
The defense questioned the man for over an hour before using a peremptory strike to remove him from consideration. The defense and the prosecution each have a limited number of these strikes, where they don't have to show a specific "cause" to dismiss someone.
The prosecution attempted to use a "Batson challenge," which alleges that the person has been struck due to their sex, race or ethnicity.
However, the judge denied the challenge. Judge Peter Cahill pointed out that the man compared the video of George Floyd's death to World War II, and the officers to an occupying force. He also said that while the man eventually said he could give Derek Chauvin the presumption of innocence, “it was difficult to get there."
Eric Nelson, Chauvin's attorney, has nine peremptory challenges left. The prosecution has five. The defense started with more challenges than the prosecutors.
When the judge denied that challenge, he listed the racial makeup of the six jurors so far: Three white, one multiracial, one Hispanic, one Black.
"I see no pattern whatsoever from the defense of striking racial minorities," the judge said.
Jury selection resumed at 1:15 p.m. with juror #39. Six jurors have been seated so far, and the judge and the legal teams need to find eight more.
The judge and the legal teams broke early for lunch at noon, planning to question the next juror at 1:15 p.m.
Upon returning from a morning recess, the prosecution made an objection to the dismissal of a Black woman from the jury panel that happened right before the break.
Prosecutor Steve Schleicher said that although the woman had an emotional reaction to the video of George Floyd's death, she had told the court that she could put her opinions aside to hear the case fairly. The prosecution wanted the defense to use one of its limited peremptory challenges to strike her, instead of having the judge dismiss her.
The judge, however, said he stood by his decision to dismiss her "for cause."
Judge Peter Cahill pointed out that when asked if she could return a "not guilty" verdict if she thought the law required it, she said "I could render that verdict but I wouldn't like it." Judge Cahill said when he finally "gave her the space" to say, can you presume the defendant innocent, "she answered unequivocally 'no.'"
A sixth juror has been seated in the murder trial of Derek Chauvin. Juror #36 was the second person questioned on Thursday morning, and neither the prosecution nor the defense used a strike to remove him. He was described by the pool reporter as "possibly Hispanic."
The man is a "route driver" and was formerly a manager. He described himself as a family man. When defense attorney Eric Nelson questioned him, he asked about the man's comments on the questionnaire that he has a "very negative" view of Derek Chauvin. Nelson also asked the man about a description of the video showing Chauvin with his knee on George Floyd's neck, where the man said Floyd was "desperately screaming." Nelson said it appeared the man was offering an opinion with that statement.
The prosecution also asked the man about a questionnaire answer where he said he had neutral feelings about George Floyd, but believed that if he had complied with officers, "that wouldn't have happened."
He told both attorneys he could put any opinions aside and listen to all the facts before making a decision. Nelson specifically asked the man if he could follow the law and the judge's instructions, even if he did not agree with them morally. The man said he could.
The juror was seated, becoming the first person to be chosen on Thursday and the sixth in total. The judge told him to report back on March 29 and plan for a four-week trial. The legal teams and the judge now need to find eight more people.
A Black woman was questioned next, juror #37, who said she cried watching the bystander video of Floyd when he called out for his mother. She said it would be "traumatizing" to see the video again but she would be willing to watch it if she needed to. She also wrote in her questionnaire that Chauvin "looked so hateful" in the video. She was eventually dismissed for cause by the judge.
Jury selection resumed Thursday morning in the Derek Chauvin trial.
The process continued at 9 a.m., after Judge Peter Cahill reinstated a third-degree murder charge against Chauvin during the 8 a.m. motions hearing.
The first person to be questioned and dismissed for cause Thursday was potential juror #31. Everyone is referred to by a number to protect their identity, and the camera feeds of the courtroom will not show any prospective jurors.
As of Thursday morning, five jurors had been selected and nine more need to be found to round out the 14-person panel - 12 jurors and two alternates.
As soon as Judge Peter Cahill entered the courtroom Thursday morning, he addressed the ongoing issue of reinstating a third-degree murder charge against Derek Chauvin.
On Monday March 8, the defense officially asked the Supreme Court to review the third-degree charge. But that request was denied on Wednesday, two days into jury selection.
The court of appeals noted in their initial opinion that Judge Cahill can still hear arguments before making a decision. He heard first from the prosecution Thursday morning.
"It's a very straightforward decision," Katyal said. "You have the absolute discretion to add this charge, and we think you should."
The judge acknowledged that the court of appeals ruled that the defense can still present arguments against adding the charge.
Eric Nelson, Chauvin's attorney, presented his case Thursday morning. Nelson argued that this case is "factually and procedurally" different from the Mohamed Noor case. In that case, another former Minneapolis police officer was convicted of third-degree murder in the shooting death of Justine Ruszczyk Damond. The court of appeals upheld that charge against Noor, and he has appealed to the Minnesota Supreme Court. The higher court will hear that appeal in June.
The Noor case addresses the question of whether third-degree murder can be used in an instance where the death-causing act is directed at a single person. Historically in Minnesota, the charge has been used for a dangerous act that puts many people at risk, such as shooting into a crowd.
However, in its ruling last week, the Minnesota Court of Appeals indicated that until the state Supreme Court rules on that matter, its previous ruling on third-degree murder stands: That it can be used against a single person.
Nelson argued that Noor's shooting across his partner's chest did in fact endanger more than one person, so that case is different from the Chauvin case. However, Cahill countered that the court of appeals specifically said in its ruling that the charge can apply when only one person is endangered.
"I'm not questioning the court of appeals this time," Cahill said.
Nelson also argued that the case is different because a gun is "inherently dangerous" while Derek Chauvin's knee is "not inherently dangerous."
Katyal responded to Chauvin's arguments. He said that while Judge Cahill is entitled to hear new arguments, he does not believe the court of appeals meant the previous issues should be re-debated.
"If there's good cause for some new argument that hasn't been made, OK, fine," he said. "I don't think anything today rises to that level."
Katyal said he does not agree that the Noor case is different from the Chauvin case because more people were endangered in the Noor case.
"Major points for creativity" to Nelson, Katyal said, but the court of appeals decision in Noor does not take into account the idea that his partner was endangered. He read from the ruling, saying, "We therefore hold a conviction for third-degree murder ... may be sustained even if the death-causing act was directed at a single person."
After hearing all arguments, Cahill reinstated the third-degree murder charge. He clarified in the courtroom that when making his previous ruling to deny the charge, it was because he did not believe the decisions of the Minnesota Court of Appeals were precedential until they were final. That would mean, until the state Supreme Court either denied review, or reviewed and upheld the decision.
Now that the Minnesota Court of Appeals has clarified that its decisions are precedential once filed and the Minnesota Supreme Court has denied review of that ruling, Cahill said, "I accept that now as a rule of law promulgated by the court of appeals."
"I feel bound by that and I feel that it would be an abuse of discretion not to follow that," Cahill said. He later added, "I'm not that incorrigible that I would ignore the court of appeals and their pronouncements."
The judge noted that this decision only applies to Derek Chauvin, and not to the three former police officers charged in George Floyd's death. The prosecution has also requested to add third-degree murder to the charges facing Tou Thao, J. Alexander Kueng and Thomas Lane.
"This is not a decision for the other three defendants who are set for trial at a later date," Cahill said.
The defense did not appeal the judge's decision Thursday, so jury selection will move forward as scheduled.
"I on behalf of my client am comfortable with the decisions this court has made," Nelson said. "I am not seeking to restart the process."
The judge and attorneys agreed on Thursday to start jury selection at 9 a.m. Friday, and skip the regular 8 a.m. motions hearing for the day.
George Floyd family attorney Ben Crump issued a statement in response to the Minnesota Supreme Court's decision not to review the third-degree murder charge, allowing Judge Cahill to make his ruling to reinstate it.
"We're gratified that the judge cleared the way for the trial to proceed and for Chauvin to face this additional charge," Crump wrote. "The trial is very painful and the family needs closure. We're pleased that all judicial avenues are being explored and that the trial will move forward."