Derek Chauvin Rebuffed by High Court

T he likelihood that former Minneapolis police officer Derek Chauvin will be convicted of murdering George Floyd has increased significantly.

On Wednesday, the Minnesota supreme court declined to delay the trial in order to consider the validity of the third-degree-murder charge, which alleges that Chauvin exhibited depraved indifference in causing Floyd’s death. As a result, the trial judge, Peter Cahill, reinstated the charge this morning, as jury selection continued. Judge Cahill had thrown the charge out last October, while upholding second-degree-murder and manslaughter counts against Chauvin, who is being tried separately from the other three former police officers implicated in Floyd’s death.

As I explained in my Sunday column outlining the charges against Chauvin, the state court of appeals recently directed Judge Cahill to reconsider his dismissal of the depraved-indifference-homicide count. (In Minnesota, such a charge qualifies as murder in the third degree.)

Judge Cahill had held that the charge was inapplicable to Chauvin’s case. Following the text of the relevant statute, and Minnesota precedent on depraved indifference, he reasoned that Chauvin’s allegedly reckless use of force was targeted at a single person — Floyd. Generally speaking, “depraved indifference” means that the perpetrator acts without any regard to human life and thus endangers everyone in the vicinity, not just a single person, by his reckless act. The usual example is the gunman who fires into a crowd, imperiling everyone but heedless of whether he kills or wounds any particular person.

In the case of former officer Mohamed Noor, however, a court of appeals panel held, in a 2–1 ruling, that depraved-indifference homicide may properly be applied to a case in which a single person is targeted. The decision upheld Noor’s third-degree-murder conviction, based on his recklessly shooting and killing a single victim whom he mistakenly believed might be attacking him and his partner in their squad car.

The panel majority’s opinion in Noor prompted a strenuous dissent by appellate judge Matthew Johnson, who complained that the ruling distorted the language of the third-degree-murder statute and the state’s jurisprudence on the subject. Nevertheless, because the lower court is bound to follow court of appeals decisions, prosecutors in Chauvin’s case moved to have Judge Cahill reinstate the depraved-indifference charge based on the ruling in Noor.

Up until this morning, Cahill had declined to do so, obviously believing that Judge Johnson’s Noor dissent, which accorded with his own reasoning in throwing out the analogous charge against Chauvin, was correct. That is not a valid reason for a judge to refuse to follow a superior court’s precedent, which, in this instance, is the majority opinion in Noor. The Chauvin prosecutors thus asked the court of appeals to order Cahill to reinstate the charge. Last week, a three-judge panel of the appellate court unanimously instructed Cahill to reconsider his dismissal of the third-degree-murder charge in light of the appellate court’s Noor decision.

In the meantime, Chauvin’s counsel this week asked the Minnesota supreme court to review the court of appeals’ decision nudging Cahill to reinstate the charge based on its Noor ruling. Since the supreme court has already agreed to take up Noor’s appeal of his third-degree-murder conviction, Chauvin’s counsel hoped that the state’s highest court would expedite consideration of the same issue in connection with Chauvin’s case.

Finally, on Wednesday afternoon, the supreme court declined to grant Chauvin’s request. That forced Cahill’s hand. On Monday, prosecutors had asked the court of appeals to order Cahill to suspend jury selection until the third-degree-murder issue is resolved. With the parties ready to go to trial, Cahill did not want to adjourn jury selection. And with the supreme court formally declining to intervene, Cahill could no longer rationalize resisting a binding precedent — especially after the court of appeals had instructed him to reconsider (which was a polite way of telling him to reinstate the charge).

The inclusion of the depraved-indifference charge materially enhances the chance that Chauvin will be convicted of murder. He faces two other charges: second-degree murder and manslaughter. The second-degree-murder charge is a tough proof for the state because prosecutors would have to show that Chauvin intended to commit criminal assault against Floyd, rather than just use force, as police are authorized to do, to subdue a suspect who was resisting arrest and high on dangerous drugs. By comparison, the evidence on the manslaughter charge appears very strong: It would merely call for the jury to find that Chauvin, in kneeling on Floyd’s neck even after he had stopped breathing and had no pulse, committed a dangerous negligent act that contributed to Floyd’s death.

For progressive, anti-police activists, a jury finding that Chauvin is guilty of manslaughter would be insufficient. They will accept nothing less than a murder conviction. Inclusion of the third-degree-depraved-indifference-homicide charge makes that more likely. Consistent with Noor, the jury would be instructed that Chauvin could be found guilty of murder if he had committed acts that were so reckless they amounted to depraved indifference toward human life, even if the acts were targeted only at Floyd, rather endangering everyone in the vicinity.

The supreme court’s refusal to intervene in the case pretrial does not bar Chauvin from challenging the depraved-indifference charge if he is eventually convicted of it. As a practical matter, if Chauvin is convicted, by the time he appeals, the supreme court will have ruled on Noor’s appeal. There will be more clarity at that point than now exists under Minnesota law.

Meanwhile, jury selection, which began Tuesday, is proceeding. Judge Cahill has scheduled opening statements in the case for March 29. From there, it is estimated that the trial will last about four weeks.