MINNEAPOLIS – The judge overseeing the trial of the former Minneapolis police officer charged in George Floyd’s death said he would move forward with jury selection Tuesday despite an ongoing dispute over the possible reinstatement of a third-degree-murder charge that threatens to delay the case.

Hennepin County District Judge Peter Cahill’s decision to press forward with the trial of Derek Chauvin, 44, who is accused of killing Floyd, 46, by kneeling on his neck for more than nine minutes during a police investigation in May, drew an immediate appeal from prosecutors and raised eyebrows among legal observers, who said the unusual maneuver could later be grounds for a defense appeal to have the case thrown out.

The legal uncertainty came on what was supposed to be the first day of jury selection in the landmark trial. But proceedings were halted almost immediately after prosecutors questioned whether Cahill could move forward without ruling on the prosecution’s efforts to reinstate a charge of third-degree murder. Cahill, who threw out the charge in the fall, saying it could not be applied to the case, was ordered by the Minnesota Court of Appeals on Friday to reconsider his decision.

Cahill said Monday that he was not yet able to make a ruling on the issue because the appeals court ruling was pending. But he described the third-degree-murder charge as a narrow issue in the case and said he planned to move forward with jury selection and other pretrial matters. The decision drew objection from prosecutors, who filed a motion for a stay in the case with the state court of appeals, arguing the lack of clarity on charges and questions about Cahill’s jurisdiction risks the case being thrown out on appeal.

“There is no need for this kind of uncertainty in any case, let alone a case of this magnitude,” prosecutors said in their appellate motion.

As prosecutors filed their appeal, Cahill sent potential jurors home for the day and recessed the court for several hours. On Monday afternoon, the appellate court indicated to the prosecution that it would consider the petition for a stay, but it did not order a halt to the proceedings while it does so. That prompted Cahill to resume a hearing on pretrial motions and to schedule jury selection to begin Tuesday.


“I’m going to keep going until I’m told to stop,” Cahill said.

Other matters have raised uncertainty about a possible delay in the trial. Eric Nelson, Chauvin’s attorney, agreed that Cahill should continue with jury selection and weighing other matters related to charges in the case. He signaled that he intends to file an appeal with the Minnesota Supreme Court if the appellate court decides that the third-degree-murder charge should be reinstated.

Chauvin, who is White, is charged with second-degree murder and second-degree manslaughter in the death of Floyd, a Black man.

“We’re prepared to try this case. It is not our intent to cause delay. . . . However, I do have an ethical obligation to my client,” Nelson said in court Monday, adding that the court is not “deprived of jurisdiction over anything other” than the third-degree-murder charge.

Prosecutors argued that the proceedings should be postponed amid expected appeals. Assistant Minnesota Attorney General Matthew Frank, the lead prosecutor, said jury selection should not proceed in a case in which the charges are legally uncertain.

“This court will be seating jurors for a trial about which we don’t know what the exact charges are going to be yet,” Frank said. “Our position is that while this appeal is pending, the court doesn’t have authority to hear matters that are involved in the trial.”


Susan Gaertner, the former chief prosecutor in neighboring Ramsey County, said she could not recall a case in which a judge had opted to move forward while there was an ongoing appeal over specific charges in the case. She echoed prosecutors in the case who said Cahill’s decision to press on without addressing the third-degree murder charge could be grounds for a defense appeal to throw out the charges if Chauvin is convicted.

“I think reasonable minds could ask the question, ‘What is the rush?’ ” Gaertner said. “When the prosecutor argued today, this is really important and let’s get it right. That is a strong argument.”

But she acknowledged the tricky position that Cahill is in. The third-degree0murder statute, which is the subject of a separate appeal before the state Supreme Court, is widely considered unsettled law. And the judge in the case is facing pressure for the court to move forward quickly.

“People in Minnesota, in Minneapolis, people in the world, want this trial to start. But on the other hand, there’s this open question of what the charges should be. And so to balance those dynamics is difficult. It’s a very unusual situation,” Gaertner said.

Minneapolis has been bracing for weeks for the trial, which is poised to be a defining moment in the history of a nation that is grappling with a racial reckoning. City and county officials estimate that they are spending a combined $1 million on security before the trial, fortifying public buildings, lining streets with fencing and barbed wire, and bringing in the National Guard and other law enforcement officers.

The debate about the third-degree-murder charge has injected even more uncertainty into the case, heightening tension in a city already on edge.


Chauvin appeared in the courtroom Monday, his first public appearance since September. He wore a black mask and a dark blue suit and stood at militarylike attention as Cahill called the proceedings to order. Seated at a table next to his attorney in a socially distanced courtroom, the former officer looked back and forth between attorneys and the judge as they argued about whether the case should proceed. He held a pen and a legal pad and occasionally took notes, but he said nothing.

The court has limited the number of people inside the courtroom to comply with social distancing requirements to prevent the spread of the coronavirus. A single seat set aside for a member of Chauvin’s family was empty during Monday’s proceedings. Floyd’s younger sister, Bridgett, sat in the seat designated for the Floyd family. Chauvin did not look her way.

“I sat in the courtroom today and looked at the officer who took my brother’s life. I just really wanted that officer to know how much love Floyd had. Not only by me and his family, but you guys, too, and in the people around the country,” Bridgett Floyd said afterward. “That officer took a great man, a great father, a great brother, a great uncle and a great father.”

Meanwhile, protesters gathered outside the courthouse in downtown Minneapolis to support members of Floyd’s family. About a dozen activists gathered near the entrance, holding signs with messages such as “Stronger together,” “We love you” and “Hope,” as hip-hop and soul music blared from a speaker, starting with a protest anthem from the summer, “How Many Times,” by Trey Songz.

On the other side of the signs were mirrors with starker messages, such as “Accountability,” “The world is watching” and “Reflect.”

Visual Black Justice, a youth-driven advocacy group, organized the display. It also brought panels of murals of Floyd that had been painted on plywood that businesses used to board up in the aftermath of last summer’s protests.


The group’s president, Taycier Elaine Elhindi, 23, stood at the front with a sign reading, “We got your back,” which, when flipped, was a mirror reading, “No peace.”

“The combination of the boards and the mirror was because we need to look back at where we were nine months ago and then we need to look forward to where we need to be,” she told The Washington Post the day before. “Also, we need to look at ourselves and ask: How can we make that change? And so, as much as we’re holding our elected officials and our government and our law enforcement and the National Guard accountable, we need to be holding each other and ourselves accountable in the space.”

At a rally near a light-rail station about a block away, the mood was more boisterous. As incense burned and a snare drum kept the beat, several hundred people chanted, “Indict, convict, throw these killer cops in jail, the whole damn system is guilty as hell.”

As the chants died down, speakers took to a microphone, and then a Native American dance troupe, Kalpulli Yaocenoxtli, with members wearing bright floral Kopilli headdresses and ayoyotes beads on their ankles, began a ritualistic dance while two drummers in the center of the circle kept a thumping, steady rhythm.

Although jury selection was held up Monday, prosecutors and Chauvin’s defense attorney said they had agreed to dismiss 16 of the first 50 jurors they reviewed “for cause” based on their answers to a 16-page questionnaire mailed to potential jurors in December. No reasons were given, and Cahill approved the request.

Video: http://www.washingtonpost.com/video/national/jury-selection-in-derek-chauvin-trial-delayed-as-prosecution-seeks-stay/2021/03/08/e1d6bf57-066c-4b55-a0b7-331d9e964ac4_video.html(The Washington Post)

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