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J. Alexander Kueng, Thomas Lane and Tou Thao
This combination of photos provided by the Hennepin County Sheriff's Office shows, from left, J. Alexander Kueng, Thomas Lane and Tou Thao. They have been charged with aiding and abetting Derek Chauvin in the killing of George Floyd. (Hennepin County Sheriff's Office via AP)

Appeals court hears case of 3 ex-cops charged in Floyd death

Attorneys for the state and for three former Minneapolis police officers charged in George Floyd ‘s death appeared before the Minnesota Court of Appeals on Thursday as prosecutors sought to add an additional charge to the case.

Thomas Lane, J. Kueng and Tou Thao are scheduled to face trial next March on charges of aiding and abetting second-degree murder and manslaughter. Prosecutors want to add an additional count of aiding and abetting third-degree murder.

The three-judge panel has 90 days to rule. Based on an appeals court decision  in February and a related ruling in the case of former officer Derek Chauvin that found the February ruling was binding, the judges could rule in favor of the state and send the case back to the lower court to add the charge.

“We think the Chauvin case should settle the matter here,” said Neal Katyal, an attorney for the state, adding that the state could even charge all or some of the men as principle actors, not as accessories to the crime.

Attorney Deborah Ellis argued for the defense that the three can’t be charged with aiding and abetting third-degree murder, because third-degree murder is an unintentional act and relies on a defendant’s reckless state of mind, but aiding and abetting must be intentional.

Judge Renee Worke called the argument “novel.”

Katyal said that argument “is just wrong” and has no merit, but if it is considered it should go before the lower court for debate.

Floyd, 46, died on May 25, 2020, after Chauvin  pinned him to the ground with a knee on his neck as the Black man repeatedly said he couldn’t breathe. Kueng and Lane helped to restrain Floyd — Kueng knelt on Floyd’s back and Lane held down Floyd’s legs. Thao held back bystanders and kept them from intervening during the roughly 9½-minute restraint.

Chauvin was  convicted last month of second-degree unintentional murder, third-degree murder and manslaughter and is awaiting sentencing. All four former officers also face federal charges accusing them of violating Floyd’s civil rights.

The issue of the third-degree murder count has been complicated in this case.

In October, Judge Peter Cahill tossed a third-degree murder charge against Chauvin, saying it could only be sustained if Chauvin’s conduct had been “eminently dangerous to others” and not specifically directed at Floyd.

But in February, a three-judge panel of the Appeals Court opened a window for that charge to be reinstated when it issued a ruling in an unrelated police shooting death. In that case, the court upheld the third-degree murder conviction for former officer Mohamed Noor in the 2017 shooting death of Justine Ruszczyk Damond. The panel ruled that a third-degree murder conviction can be sustained even if the action that caused a death was directed at a single person.

That led prosecutors to seek the reinstatement of the third-degree murder charge against Chauvin, and add a count of aiding and abetting third-degree murder for the other officers. Cahill denied both requests, and prosecutors appealed. The Appeals Court then ruled that the Noor opinion set binding precedent, even though it remains before the state Supreme Court. Cahill reinstated the charge against Chauvin.

Prosecutors say the other former officers should now be charged with aiding and abetting third-degree murder.

“This Court routinely follows its precedents from their date of publication unless and until the Minnesota Supreme Court reverses them,” prosecutors said in written arguments. To allow courts to flout these decisions “invites chaos because it would allow courts to eschew precedent based on their own preferred reading of the law. … And it threatens to undermine public faith in the judicial process and the rule of law.”

Defense attorneys wrote: “To aid and abet in third degree murder, an aider and abettor would have to have intentionally aided in an unintentional homicide, would have to have known that the principal intended to commit a crime and have known the principal’s subjective mindset. This is inherently impossible.”

Thursday’s oral arguments were held over Zoom. In addition to Worke, Judges Matthew Johnson and Theodora Gaitas were also on the panel.

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