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Appeals court considers new charge against 3 ex-cops accused in George Floyd’s death

Marilyn Nieves/iStock

(MINNEAPOLIS) — A Minnesota appeals court is considering whether to allow prosecutors to file an additional charge against three former Minneapolis police officers already accused of aiding Derek Chauvin in the killing of George Floyd during a 2020 arrest.

At a virtual hearing on Thursday, a prosecutor from Minnesota Attorney General Keith Ellison’s office asked the state Court of Appeals to reverse a lower court ruling preventing a charge of third-degree aiding and abetting murder from being filed against Thomas Lane, J. Alexander Kueng and Tou Thao.

The former officers are already charged with aiding and abetting second-degree murder and aiding and abetting second-degree manslaughter. They have all pleaded not guilty and are awaiting a trial scheduled for March 2022.

Prosecutor Neal Katyal asked the three-judge panel to allow his office to file the new charge based on an earlier ruling by the appellate court finding that Hennepin County District Court Judge Peter Cahill erred when he dismissed a third-degree murder charge against Chauvin in February, about a month before Chauvin went on trial.

Cahill reinstated the charge against Chauvin when the appellate court asked him to reconsider the count based on its decision to uphold the conviction of former Minneapolis Police Officer Mohamed Noor on second-degree manslaughter and third-degree murder charges in the 2017 fatal shooting of Justine Ruszczyk Damond after she called 911 to report an assault in progress near her home.

Chauvin was convicted in April of second-degree unintentional murder, second-degree manslaughter and third-degree murder. He is scheduled to be sentenced in June.

Because the third-degree murder case was reinstated against Chauvin, Katyal argued that the new charge against the three other officers was appropriate, saying the law requires “to treat like cases alike.”

“We think that the Chauvin case should settle the matter here, as the district court’s rationale was the same for the three defendants before you as it was for Mr. Chauvin,” Katyal argued. “It would be a very odd result if three defendants get to hear their alternative argument now, but one defendant didn’t and had to go back to the district court for it.”

Deborah Ellis, an attorney for the three former officers, asked the court to reject the prosecution’s request, arguing it is inappropriate in the case because it’s a “legal impossibility.”

Ellis argued that third-degree murder is an unintentional act and relies on a defendant’s reckless state of mind, but aiding and abetting must be intentional.

Ellis said that though an accomplice could act recklessly, it takes more to aid someone with a depraved mind. She argued that in this case, the principal person and accessories must have acted with the same mindset.

Katyal countered that the defense attorneys never made that argument to Cahill when he made the decision not to allow prosecutors to file the third-degree aiding and abetting murder charge.

“We think the argument is just wrong,” Katyal said.

Nonetheless, Katyal asked the appeals court to send the case back to the lower court to consider Ellis’s argument.

The judges said they will make a decision in writing within 90 days.

Floyd’s killing in May 2020, captured on multiple cell phone, security and body camera videos, prompted protests nationwide. The videos showed Chauvin kneeling on the back of the 46-year-old handcuffed Black man’s neck for more than nine minutes as Lane and Kueng allegedly helped hold him down and Thao stood by keeping witnesses at bay.

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