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Judge denies prosecution request to add 3rd-degree murder to charges in George Floyd's death

Minnesota Attorney General Keith Ellison filed a motion requesting the additional charge last week.

MINNEAPOLIS — A judge has denied the prosecution's motion to add third-degree murder to the existing charges against four former Minneapolis police officers in the death of George Floyd.

Minnesota Attorney General Keith Ellison filed a motion requesting the additional charge last week. Derek Chauvin had originally been charged with third-degree murder in Floyd's death, but Judge Peter Cahill dismissed that charge for lack of probable cause. Minnesota case law has historically regarded third-degree murder as a "death-causing act" that cannot be directed at a single person.

Chauvin is still charged with second-degree murder and second-degree manslaughter.

Ellison wanted the third-degree murder charge reinstated, and also wanted to charge the other three former officers with third-degree murder. Currently Tou Thao, Thomas Lane and J. Alexander Kueng face aiding and abetting charges in the case.

Ellison cited a Minnesota Court of Appeals decision in another high-profile case against a former Minneapolis police officer, Mohamed Noor. Noor appealed his third-degree murder conviction in the shooting death of Justine Ruszczyk Damond.

RELATED: Prosecutors want 3rd-degree murder charge against all officers in George Floyd case

RELATED: Noor will ask MN Supreme Court to review decision upholding 3rd-degree murder conviction

The court of appeals ruled in Noor's case that "third-degree murder may occur even if the death-causing act endangered only one person." Ellison argued that ruling is precedential, and can now be used to reinstate the charge against Chauvin.

But Chauvin's defense attorney argued against the motion, saying that the case is not yet "precedential," and may not ever become precedential, since the court's orders do not become final until the defendant has had a chance to petition the Minnesota Supreme Court to review. Noor's attorney has indicated that he plans to do so. 

In the judge's ruling Thursday, he denied both of Ellison's motions, refusing to reinstate the charge against Chauvin or to allow it to be added against the other officers. Judge Cahill said he still believes that third-degree murder charge cannot be used when "the death-causing act was solely directed at a single person and was not eminently dangerous to others."

RELATED: What is 3rd-degree murder and 2nd-degree manslaughter in Minnesota?

Judge Cahill wrote in his ruling that the state prosecutors are correct in asserting that if the decision is precedential, the court "is now duty-bound to follow it" and grant the state's motions. However, Cahill agreed with the defense that the court of appeals opinion does not become final, and therefore precedential, until the window for Noor to appeal to the Minnesota Supreme Court has expired. That deadline is March 3, 2021.

If Noor asks the state Supreme Court for review by then, state prosecutors will have 20 days to respond, and the Supreme Court will have 60 days to decide whether to review. 

Cahill concluded that if the decision becomes precedential, it will "virtually certainly" not happen until sometime after March 8, when Chauvin's trial begins.

Cahill acknowledged that even though the decision is not currently precedential, he could still accept it as "persuasive." He said he's choosing not to do so because it departs from the Minnesota Supreme Court's "long adherence to the no-particular-person requirement embedded in the depraved mind element" of a third-degree murder charge.

Minnesota law defines third-degree murder as causing a person's death without intent, "by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life." The Minnesota Supreme Court has ruled 14 times that the statute means "a defendant cannot be convicted of depraved mind murder if his or her conduct was directed at the particular person who was killed," according to Cahill's denial.

A spokesperson for Ellison said his team is studying the ruling.

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