Derek Chauvin’s defense suffered a loss on Wednesday when the Minnesota Supreme Court ruled that he may have to face a third-degree murder charge for the death of George Floyd. That would be in addition to the current charges he is fighting, second-degree murder and second-degree manslaughter. Any new charge is a charge a jury might convict on, so this is bad news for Chauvin. Furthermore, the new charge may provide a path toward a “compromise verdict.”

Keith Ellison is the Minnesota attorney general who is leading the prosecution. State attorneys general don’t typically handle homicide cases, but Ellison accepted an invitation from Democrat Governor Tim Walz to serve as special prosecutor. At the time, Mr. Chauvin had been charged by Hennepin County Attorney Mike Freeman with third-degree murder and second-degree manslaughter. Ellison added the more serious charge of second-degree murder, carrying the possibility of a 40-year sentence for Chauvin if convicted.

One, Two, Three Degrees of Murder

In October, the trial judge, Peter Cahill, threw out the third-degree murder charge. Here is the state’s third-degree murder statute:

609.195 MURDER IN THE THIRD DEGREE.

(a) Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.

It’s that part about the act being “eminently dangerous to others” that is at issue here and why Judge Cahill threw the charges out. He didn’t see how Chauvin was dangerous to others, even if he did kill Mr. Floyd; Cahill eliminated the charge in October and declined to reinstate it in February. Because of another famous case in the Minnesota courts, Ellison suggests he can have a second and third-degree, too.

As Law and Crime reports on the unrelated case:

“[A] third-degree murder case involving a former Minneapolis police officer convicted in the death of a woman. Mohamed Noor was sentenced last year for shooting 911 caller Justine Ruszczyk while on-duty. As discussed in case documents, the Court of Appeals upheld the conviction on February 1, 2021. The question was whether a third-degree murder charge could hold if the defendant’s homicidal act endangered an individual, not multiple people. The court ruled yes, though the dissent said this decision flipped more than a century of case law.”

Judge Cahill said that since this appeals court ruling could still be appealed, he should not treat that case as controlling. He said he would stick with longstanding precedent unless and until the state’s Supreme Court ruled on the Noor case, which only then could apply to Mr. Chauvin. Prosecutors appealed Cahill’s ruling, and the appellate court ruled against him. The court ordered Judge Cahill to re-examine the prosecution’s request in light of the Noor case. Chauvin’s defense then asked the Minnesota Supreme Court to overturn the appellate court, but the ruling was not in their favor.

Compromise Verdict Cultivated

Why fight so hard over the charge? To prevent, or insert, a compromise charge to get a murder conviction. There’s a rule discussed in restaurant wine selection: offer a cheap option, an expensive one, and a mid-level choice, priced with more profit built-in than the others. People will, more often than not, choose the middle option. That’s the same principle at play here, and both sets of lawyers are playing it for opposed reasons.

Defense attorneys want to take away the median option of third-degree murder because they believe jurors will choose manslaughter if they have a smaller menu to pick from. That is to say, given a choice between only the severe option of second-degree murder and the lighter verdict of manslaughter, the jury may go easy on the defendant. If presented with another, middle of the road option of third-degree murder, the defense fears the jury will choose it in a “compromise.”

Compromise verdicts must be especially guarded against during famous cases or those where there may be massive public or social pressure to vote a certain way. Mr. Ellison presumably wants the charge in there for a mirrored reason – he wants the jury to have the option to convict on a murder charge that is less than second degree. He wants a compromise murder verdict for the jury to use if they choose. That reduces the chance of a politically destructive less than murder conviction.

Midday on Wednesday, the Supreme Court ruled that the trial court must re-evaluate the prosecution request to reinstate third-degree murder charges in light of the Noor case.

Juror selection was shortened on Wednesday. Two new jurors were impaneled, which, according to the Star Tribune, brings “the number of white men on the panel to three, along with a woman of color and a Black man…” Judge Cahill promised to take up the new charge issue first thing on Thursday, March 11.

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Read more from Scott D. Cosenza.