By Dorrin Akbari & Ankita Joshi
MINNEAPOLIS, MN – Judge Peter Cahill postponed the start of Derek Chauvin’s trial in the killing of George Floyd Monday following the prosecution’s petition to delay jury selection pending an appeal by the defense to the Minnesota Supreme Court over an additional charge of third-degree murder.
Judge Cahill rescheduled the jury selection to Tuesday morning, barring a decision from the Minnesota Court of Appeals forbidding him from doing so, noting “As I’ve said to the State, unless the Court of Appeals tells me otherwise, we’re going to keep moving.”
Chauvin presently faces the more serious charge of second-degree murder—which carries a prison sentence of up to 40 years—and a charge of second-degree manslaughter. Minnesota prosecutors want 
the jury also to be able to consider a third-degree murder charge, which carries a sentence of up to 25 years in prison.
State prosecutors had initially charged Chauvin with third-degree murder and later added the second-degree murder and manslaughter charges. In October, Judge Cahill dismissed the third-degree charge, which involves a reckless act that threatens the lives of others, on grounds that it only applies when the act threatens more than one person.
On Feb. 1, the Minnesota Court of Appeals rendered a decision on a third-degree murder charge in a shooting case by former Minneapolis police officer Mohamed Noor, finding that the reckless act could apply even when only one person was threatened.
Later that month, Judge Cahill rejected a prosecution motion to reinstate the third-degree murder charge, finding that the ruling didn’t apply to the Chauvin case because it could still be appealed
to the Minnesota Supreme Court.
The state Supreme Court has already accepted an appeal by Noor’s attorneys. The ruling on that appeal, once rendered, will carry implications in Chauvin’s case.
On Friday, the Minnesota Court of Appeals said that Judge Cahill must reconsider his decision to exclude the third-degree murder charge. The appellate court’s opinion still left room, however, for Judge Cahill to reject the third-degree murder charge if the defense puts forth a different argument.
Chauvin’s defense attorney, Eric Nelson, said this Monday that he intends to ask the Minnesota Supreme Court to overturn the appellate ruling.
Matthew Frank, Minnesota’s assistant attorney general, argued that proceedings would have to be delayed in light of the defense’s forthcoming petition.
Two questions stood at the center of the prosecution’s request to halt further proceedings: (1) whether Judge Cahill had the jurisdiction to entertain the motion to reinstate the third-degree murder charge and (2) whether any other pending matters could be discussed while they awaited the Minnesota Supreme Court’s decision.
All parties agreed that Judge Cahill lacked jurisdiction to move forward on the third-degree charge while the Court of Appeal’s ruling was still in dispute. However, the prosecution and defense were divided on the second question—with Judge Cahill expressing support for the defense’s position on the matter.
Despite his plans to petition the state Supreme Court, Nelson noted he was ready to begin the trial with the third-degree murder charge still pending.
“I want to inform the court that we’re prepared to try this case,” said Nelson. “It is not our intent to cause delay by filing a [petition to the Minnesota Supreme Court]. However, I feel I have an ethical obligation to my client and to other criminal defendants to do so because it was a precedential opinion.”
Frank—contending that all proceedings should be halted—said that the third-degree murder charge, if included, would be integral to the presentation of the prosecution’s case, beginning with jury selection.
“This court will have to be making decisions about seating jurors for a trial about which we don’t know what the exact charges are going to be because of the pending appeal,” said Frank. “We want it all out in the open. We don’t want to wait for a condition that may not get satisfied when a jury is sitting there.”
Judge Cahill argued that the third-degree murder charge is a narrow issue and noted that lesser charges, as third-degree murder would be in this case, are frequently added in murder cases after jury selection has taken place. Waiting for the Supreme Court’s decision, Cahill cautioned, could delay the trial by at least 30 days.
“We’re not trying to delay this case. We want to try it right, and we can only try it once,” Frank said.
In the meantime, prosecutors filed a petition to the Minnesota Court of Appeals to stop jury selection until the court rules on whether Cahill has jurisdiction to review other matters in the case with the third-degree murder charge still pending.
The State argued that if proceedings continued, Chauvin would be in a “heads I win, tails you lose” scenario—he could take his chances at trial, and if convicted, could claim he’s entitled to a reversal because Judge Cahill lacked jurisdiction while overseeing the jury selection process.
“There is no need for this kind of uncertainty in any case, let alone a case of this magnitude,” the prosecution cautioned in their petition.
Following the recess, Judge Cahill resumed court proceedings with pretrial motions presented first by the State and then the defense.
The prosecution began with motions that set the “decorum” for the rest of the trial. These motions included the sequestration of witnesses and rules for addressing different parties within the courtroom. The motions passed without much debate.
As the prosecution continued, there were longer periods of deliberation over the following motions:
Both parties agreed that the defendant’s criminal history was not to be brought up in court. This motion concerned Chauvin’s tax fraud case in Washington County.
Medical examinations performed by doctors of the Floyd family were agreed not to be included in the trial, as they had not been conducted under the formal criminal investigation.
Acknowledging that the existing list of potential witnesses contained 400 individuals, both parties agreed to provide more succinct witness lists by March 22, to be updated as circumstances change.
One particular motion to exclude evidence shocked Judge Cahill and was immediately passed. The motion dealt with a witness for the State analogizing the crucifixion of Christ and the asphyxiation of the victim, George Floyd. This likening was deemed prejudicial against the defendant.
On the subject of prejudice, the defense presented additional information in support of the afternoon’s most debated motion—a defense request to make an offer of proof with regard to the court’s denial of the inclusion of Floyd’s previous arrest in the case.
Nelson acknowledged that he was speculating but stated that he suspected the court previously denied the defense’s attempt to include Floyd’s past arrest as character evidence because they may have found the defense’s statement of facts at the time to be speculative.
He went on to say that there were “significant developments” since the court initially issued its order and the defense would like to “ask for reconsideration based upon that new information.”
According to Nelson, when the defense reviewed photographs of Squad 320 of the Minneapolis Police Department, “there appeared to be a white substance throughout the backseat of the squad car,” which was presumed to be a controlled substance.
After this discovery, “the state of Minnesota had those substances taken out of the squad car and tested.” It was found that “they are in fact methamphetamine and fentanyl, and they contain the DNA of George Floyd. They are partially chewed up pills.”
The additional evidence that was discovered came after a second search warrant on the Mercedes Benz driven by Floyd was authorized. Upon further inspection of the vehicle, “two pills that were identical, or appeared to be identical to, the pills that were in Squad 320” were found in the center console and analyzed.
Those pills also contained methamphetamine and fentanyl.
Nelson contended that these two discoveries together negated claims by the State that what was in Floyd’s mouth at the time of his arrest was up for speculation.
“The question has been answered. We know for a fact that there were drugs that were in the car. We know there were drugs in the squad car that contained Mr. Floyd’s DNA, and the drugs in both those cars were identical to the drugs that were in Mr. Floyd’s system at the time of autopsy,” stated Nelson.
Nelson then brought up George Floyd’s May 2019 arrest. The defense recounted the events of the arrest, during which Floyd was pulled over, had large amounts of drugs in his mouth, was ultimately hospitalized, and had to be treated by hospital staff.
After listening to the defense’s argument in favor of the motion, Judge Cahill questioned the relevance of the evidence to the motion: “What does it establish that is an element of the crime here?”
Nelson argued that the additional information “establishes a modus operandi of Mr. Floyd” and may also speak to his cause of death—“Is he actively ingesting narcotics that would cause his death?”
Still not convinced, the judge asked, “Why does it matter that he took it in response to police action versus maybe 15 minutes before? The bottom line is they were drugs and they were in his system.”
Nelson noted that the missing component to the argument was public opinion, “Because ultimately what is being said a lot about this particular case is that the Minneapolis police overreacted to a $20 counterfeit dollar bill.”
“What people in our line of work, whether it be the court, the defense, the police, the state, understand is that these are fluid situations that often evolve,” said Nelson. “These evolving situations call into question what force the police are authorized to use. It’s a lot different if you’re trying to control or secrete controlled substances than if it is a $20 bill.”
“It ultimately goes to the very nature of the police response,” Nelson contended.
However, Judge Cahill remained unconvinced. “There is not an assertion by the defense that Mr. Chauvin knew of or had arrested Mr. Floyd as part of that May 2019 incident,” said Cahill.
Judge Cahill closed by stating that the defense could submit their offer of proof for later consideration but he would not reverse his decision regarding the admission of the previous arrest at this time. Additionally, Cahill voiced concern that mention of Floyd’s past arrest without cause would add an unnecessarily prejudicial element to the trial.
Outside the courthouse, demonstrators marched—calling for justice for George Floyd.
“We will not rest until we see all four of George Floyd’s killers taken off the streets, and our communities have the power to decide who polices our communities and how our communities are policed,” organizers of the rally wrote in the description on their Facebook event page.
Marching ahead of the demonstrators, a group held a banner reading “Justice 4 George Floyd & All Stolen Lives; The World is Watching.”
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