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George Floyd’s Alleged Killer Could Face Second Murder Charge (1)

March 5, 2021, 5:20 PM; Updated: March 5, 2021, 10:35 PM

Minnesota prosecutors moved a step closer to winning reinstatement of a third-degree murder charge against Derek Chauvin, the former police officer set to stand trial for the death of George Floyd.

Friday’s ruling from a state appeals court reversed trial judge Peter Cahill’s refusal to reinstate the charge, sending the case back to him to reconsider.

Adding the charge to the trial slated to begin jury selection March 8 would bolster the government’s case and require Chauvin to fend off two murder charges in addition to a second-degree manslaughter charge. The world watched viral footage of the since-fired officer kneeling on Floyd’s neck May 25, prompting calls to hold Chauvin and other officers on the scene—who’ll be tried later—criminally responsible.

“Adding this charge is an important step forward in the path toward justice,” state attorney general Keith Ellison said in a statement Friday.

“We believe the charge of 3rd-degree murder, in addition to manslaughter and felony murder, reflects the gravity of the allegations against Mr. Chauvin,” Ellison said.

Reinstating the third-degree murder charge wouldn’t increase the maximum penalties Chauvin faces. But it would give prosecutors with Ellison’s office more room to maneuver in the upcoming trial, while providing Minneapolis jurors a third option between the existing second-degree murder and second-degree manslaughter charges.

Former acting U.S. solicitor general Neal Katyal, now a partner with Hogan Lovells in Washington, argued for the state at the appeals court in support of reinstating the charge. He joined Ellison’s team as a special assistant for this prosecution. It’s “a landmark criminal case, one of the most important in our nation’s history,” he said during oral argument on March 1.

Chauvin was already charged with second-degree unintentional felony murder and second-degree manslaughter. His lawyer Eric Nelson argued the appeal on his behalf. Nelson declined to comment Friday about whether he would appeal the ruling to the state supreme court.

As of late Friday afternoon, it’s unclear what will happen next in litigation over the third-degree charge and how that might impact the scheduled start of the trial.

The maximum penalty for the second-degree murder charge is 40 years, with a 10-year maximum for the manslaughter charge. The state sentencing guidelines for both charges are much lower, with an average of 12.5 years and four years, respectively. The third-degree murder charge falls in the same guidelines range as the second-degree murder charge but carries a lower potential maximum of 25 years.

Prosecutors have signaled they’ll push for an above-guidelines sentence if there’s a conviction, putting those stiffer prison terms in play.

To prove the third-degree murder charge if it’s reinstated, prosecutors need to show Chauvin caused Floyd’s death “by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.”

The trial judge, Cahill, had refused to reinstate the third-degree charge because the alleged death-causing act was directed at a single person.

Reversing him on Friday, the appeals court said Cahill failed to follow precedent but that Chauvin is still free to raise other arguments against reinstating the charge.

To prove the second-degree murder charge, prosecutors need to show Chauvin caused Floyd’s death while committing or attempting to commit a felony, namely assault.

For the manslaughter charge, they need to show Chauvin’s culpable negligence created an unreasonable risk and consciously took the chance of causing death or great bodily harm.

(Adds AG Ellison statement on appeals ruling. )

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at jcrawley@bloomberglaw.com; Seth Stern at sstern@bloomberglaw.com; John Crawley at sstern@bloomberglaw.com

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