For the second time in two months, attorneys prosecuting the death of George Floyd are asking the Minnesota Court of Appeals to intervene and overturn a trial judge's rulings in the case.
The latest filing marks the fifth time Attorney General Keith Ellison's office has questioned the judgment of Hennepin County District Judge Peter Cahill, who presides over the cases against four former Minneapolis police officers charged in the Floyd's May 25 death. Three other challenges were presented directly to the judge himself and not the Court of Appeals.
Legal scholars and veteran attorneys have said it's highly unusual to request the Court of Appeals to intervene before a case goes to trial, and the court has already told prosecutors once that it would not second-guess the trial judge's discretion.
Prosecutors filed their second appeal late Friday, asking the Court of Appeals to review Cahill's rejection of their motion to reinstate a count of third-degree murder against Derek Chauvin and to add aiding and abetting third-degree murder for the first time against J. Alexander Kueng, Thomas Lane and Tou Thao. The filing was made public Tuesday.
"The District Court erred in preventing the State from amending its complaint to reinstate or add the third-degree murder charge against the four Defendants," wrote Assistant Attorney General Matthew Frank and Special Attorney for the State Neal Katyal.
Chauvin is charged with second-degree murder and manslaughter. He had been charged with third-degree murder, but Cahill dismissed the count in October because the charge typically applies when a suspect's actions put others at risk and is not targeted at a specific person. It is commonly used to charge drug dealers in overdose deaths; veteran attorneys have said it would apply to, for instance, someone shooting indiscriminately into a moving train.
The Court of Appeals issued a 2-1 decision Feb. 1 upholding a third-degree murder conviction against former Minneapolis officer Mohamed Noor in the unrelated 2017 fatal shooting of Justine Ruszczyk Damond, writing that the count can apply when "the death-causing act was solely directed at a single person and was not eminently dangerous to others."
That prompted prosecutors to file a motion Feb. 4 asking Cahill to reinstate the charge against Chauvin and to add it against the other three defendants. Cahill denied the motion in a ruling last Thursday, noting that the defendants' actions were directed at one person.
The defendants were arresting Floyd for allegedly using a fake $20 bill when they pinned him stomach-down in the street, with Chauvin kneeling on his neck for more than nine minutes.
The count should be added, prosecutors argued in their appeal, because the evidence supporting the other counts also supports third-degree murder, and because of the Court of Appeals ruling in Noor's case. The Noor ruling has not yet become legal precedent because Noor's attorneys are allowed to challenge it by asking for a review by the Minnesota Supreme Court, which they have said they will pursue.
The appeal was filed hours after the Court of Appeals issued a rejection Friday of prosecutors' first request for them to intervene. Prosecutors in January asked the Court of Appeals to overturn Cahill's rulings ordering one trial in March for Chauvin and a second trial in August for his three co-defendants. Prosecutors wanted one trial in the summertime for all four defendants due to COVID-19 safety concerns, and asked the court to hold a hearing on the issue, or, to issue a writ of prohibition to stop the March trial.
Court of Appeals Presiding Judge Tracy Smith wrote in the ruling that trial judges have discretion to make such decisions, and that prosecutors' didn't provide enough evidence to compel their intervention.
"We are not persuaded that these discretionary rulings present the type of legal issues that should be reviewed by way of a petition for a writ of prohibition, especially in light of the supreme court's guidance about prosecution pretrial appeals being disfavored and a showing of critical impact being required to obtain appellate review," Smith wrote. "Moreover, the state has not identified any case establishing that a petition for writ of prohibition is the 'proper procedure' for challenging a pretrial order."
The court is designed to deal with complaints about the trial process after a defendant has been convicted, legal scholars have said.
"The Court of Appeals is generally reluctant to second-guess decisions by a trial judge, things like scheduling of the trial," Richard Frase, a University of Minnesota law professor and co-director of the Robina Institute of Criminal Law and Criminal Justice, said Friday before prosecutors filed their second appeal. "They also just don't want a constant stream of appeals questioning the trial judge. Trial judges have a lot of discretion to make decisions."
It's the latest in prosecutors pushing back on Cahill.
In November, prosecutors filed a motion asking Cahill to reconsider his ruling to livestream the trials because COVID-19 safety protocols would severely limit in-person attendance. In January, they also asked Cahill to reconsider his ruling splitting the trials into two and rejecting their request for a summer trial. Cahill denied both motions.
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