Explainer: New charge unlikely for ex-cops in Floyd death

The Minnesota Supreme Court's decision to overturn the third-degree murder conviction of former Minneapolis police officer Mohamed Noor likely won’t change the cases against the three former officers charged in George Floyd’s death.

Thomas Lane, J. Kueng and Tou Thao are charged with aiding and abetting second-degree murder and aiding and abetting manslaughter. Legal experts say last week’s ruling makes it highly unlikely that a charge of aiding and abetting third-degree murder would be added. Here’s a look at why and where the cases stand.

What happened?

The court last week threw out the third-degree murder conviction of Mohamed Noor, a former Minneapolis police officer who fatally shot Justine Ruszczyk, also known as Justine Damond, in 2017 after she called 911 to report a possible rape behind her home. Noor remains convicted of manslaughter and will be sentenced on that count.

In its decision, the Supreme Court made it clear that a person can’t be prosecuted for third-degree murder – also known as depraved-mind murder – if his or her actions were directed at a particular person. The ruling settles a longstanding debate over whether a third-degree murder charge can be applied if a fatal act is directed at someone specific. The bottom line: It can't.

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First, does this affect Derek Chauvin?

Not really. Though the former Minneapolis officer was convicted of third-degree murder in Floyd’s May 25, 2020, death, he was also convicted of the more serious count of unintentional second-degree murder. Under state law, Chauvin was sentenced on that conviction, so his 22½-year sentence on that count stands.

Experts say Chauvin’s third-degree murder conviction will likely be tossed out, either on appeal or by the trial judge. But it won’t have any real impact on his situation, unless his second-degree murder conviction is somehow overturned on appeal. Experts like Minneapolis defense attorney Ryan Pacyga say that just won't happen. Chauvin also was convicted of manslaughter.

What about the other ex-officers?

Prosecutors had wanted to add charges of aiding and abetting third-degree murder, but Mike Brandt, another Minneapolis defense attorney who has been watching the case, said there's zero chance that will happen.

“You can’t have depraved-mind murder if you are directing your actions toward one particular person,” he said.

Pacyga agreed, saying that in light of the Noor ruling, “I don’t see how the prosecution could ever justify trying to charge any of Chauvin’s co-defendants with aiding and abetting a third-degree murder.” He said it's clear Chauvin's act was targeted at one person.

Floyd repeatedly said he couldn’t breathe as Chauvin pinned him to the ground. Kueng and Lane helped restrain Floyd; Kueng knelt on Floyd’s back and Lane held Floyd’s legs, according to evidence in state court. Thao held back bystanders and kept them from intervening.

The attorney general’s office, which is prosecuting the case, said it is studying the Supreme Court decision.

Was this charge even possible?

This was a legal question even before the Noor ruling. Defense attorney Deborah Ellis argued before the Court of Appeals that it was legally impossible for Lane, Kueng and Thao to be charged with aiding and abetting third-degree murder.

She said to aid and abet, the accomplice, principle actor and accessories must all be of the same mindset. She said to aid and abet third-degree murder, “You would have to intentionally aid ... an irrational frame of mind of somebody else.” Appeals Court Judge Renee Worke called her argument “novel."

Brandt said a charge of aiding and abetting third-degree murder is theoretically possible but not practical. He said the person charged with aiding and abetting would have to know that someone else was going to commit an act that was inherently dangerous to others without regard to life — something Brandt called “a pretty high road.”

What about future cases involving police?

In arguing that Noor’s murder conviction should stand, prosecutors told the Supreme Court that nearly all killings by officers are directed at a specific person. They argued that if the court ruled as it ultimately did, then no officer would ever be prosecuted under Minnesota’s depraved-mind murder statute.

The justices said prosecutors were wrong. They said anyone, including an officer, could still be convicted of depraved-mind murder if they kill someone while showing indifference to human life in general. The court also said that depending on the case, an officer could face a different murder charge.

What’s next?

Chauvin is in custody on his murder conviction and has pleaded not guilty to federal charges of violating Floyd’s civil rights. He also pleaded not guilty to violating the civil rights of a teenager in 2017 in a separate case involving a neck restraint similar to the one he used on Floyd.

Lane, Kueng and Thao are scheduled for trial in March on the aiding and abetting counts. They also pleaded not guilty to federal charges of violating Floyd’s rights.

As for Noor, his case goes back to the district court, where he will be sentenced on the manslaughter count. With time already served, he could be eligible for supervised release around the end of this year.