Courtesy Ben Crump LawBY: BILL HUTCHINSON, ABC NEWS

(MINNEAPOLIS) — The Minnesota Court of Appeals is deciding whether to reinstate a third-degree murder charge against Derek Chauvin, the former Minneapolis police officer set to go on trial next week in the death of George Floyd.

During a virtual hearing on Monday, a prosecutor from Minnesota Attorney General Keith Ellison's office argued that the district court judge presiding over Chauvin's case "abused his discretion" by dropping the charge.

Chauvin, who did not attend Monday's hearing, is currently facing charges of second-degree murder and second-degree manslaughter in the May 25 death of Floyd, a 46-year-old Black man.

"We will ... issue an expedited decision as soon as possible, appreciating that the trial in this matter is supposed to start one week from today," Appellate Judge Michelle A. Larkin said at the close of the hearing.

Chauvin, 44, is being tried separately from three other former officers involved in Floyd's death. J. Alexander Kueng, Thomas Lane and Tou Thao are charged with aiding and abetting second-degree murder and manslaughter and are scheduled to go on trial in August.

Cellphone video showed Chauvin digging his knee into the back of Floyd's neck for a prolonged period as Kueng and Lane held the handcuffed man down in a prone position as he repeatedly cried out, "I can't breathe."

Thao is accused of standing by and keeping witnesses at bay.

Floyd went unconscious during the incident and was later pronounced dead at a hospital.

Hennepin County District Court Judge Peter Cahill, who is presiding over Chauvin's case, dismissed the third-degree murder charge in October last year, ruling that it required evidence that Chauvin's alleged actions put multiple people at risk and resulted in a death. Cahill ruled that since Chauvin is accused of only targeting Floyd, the count did not apply to his case.

During Monday's hearing, prosecutor Neal Katyal cited a Feb. 1 ruling by the Minnesota Court of Appeals upholding a third-degree murder conviction against former Minneapolis police officer Mohamed Noor in the 2017 fatal shooting of Justine Ruszczyk Damond after she called 911 to report an assault in progress near her home.

Following the Court of Appeals ruling in Noor's case, prosecutors asked Cahill to reconsider the third-degree charge against Chauvin. Cahill denied the request.

Chauvin's lawyer Eric Nelson argued on Monday that Cahill's ruling should stand because the Appeals Court decision in Noor's case should not be considered a legally binding precedent because Noor has 60 to 90 days to appeal to the state Supreme Court.

Nelson argued that if Chauvin were convicted of third-degree murder and the Noor case was overturned, he could appeal, "but he would have to do it from the confines of a prison cell."

Larkin responded, "When the Supreme Court does grant review of our cases, it typically does not vacate our decision or issue any order limiting that decision."

"All of these rules and the lack of any statement that a precedential opinion is anything but immediately effective in terms of precedential authority are causing me to question your assertion that the rules support ignoring precedential decisions of this court until such time as to seek review has expired, the Supreme Court denies review or the Supreme Court takes review and issues a different decision," Larkin told Nelson.

Katyal said that it could take the Supreme Court up to a year to review a case. He noted that there are three other former officers charged in the death of Floyd and their trial could occur "very possibly when Noor is over and left intact."

"That would mean third-degree murder charges could be brought against those three officers just because of timing," Katyal said. "Everything about our legal system rebels against that notion ... in Minnesota and any jurisdiction with which we're familiar."

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