Criticism of President Biden’s “New Cuba Policy”

On May 16, 2022, the White House held a press briefing on what it called “Our New Cuba Policy.” After examining the details of that briefing, we will evaluate that so called “New Policy” and conclude that it is inadequate by failing to call for elimination of (a) the U.S. embargo of Cuba and (b) the U.S. designating Cuba as a “state sponsor of terrorism.”

U.S. “New Cuba Policy”[1]

The “new” policy was said to be designed “to increase support for the Cuban people and safeguard our national security interests” and resulted from the U.S. study over the last year that “continues to center on human rights and empowering the Cuban people to determine their own future, and we continue to call on the Cuban government to release all political prisoners.” This review was directed by President Biden to take actions in response to “the large-scale [Cuban] protests that took place last July” and “to take actions in two primary areas:”

  • “The first is to promote accountability for human rights abuses, for which we have announced several rounds of sanctions targeting those individuals and entities with direct ties to human rights abuses.”
  • “Second, . . . to explore meaningful ways to support the Cuban people.”

Therefore, the “new” policy has “prioritized and facilitated the export of privately sourced or donated goods to the Cuban people, focusing specifically on agricultural and medical exports; facilitated U.S. private sector faith-based organizations and other NGOs to provide humanitarian support; provided guidance to individuals and entities seeking to export to Cuba for the first time; . . . increased our support for the families of those who were detained; and increased, by $5 million, our support for censorship circumvention technology to support the ability of the Cuban people to communicate to, from, and among each other.”

In addition, the “new” policy was stated to fulfill President Biden’s commitment to the “Cuban American community and their family members in Cuba” by the following measures:

  • “[R]einstate the Cuba Family Reunification Parole Program and continue to increase the capacity for consular services. . . . [The U.S.] resumed limited immigrant visa processing [in Cuba] in early May and are looking to make sure that we staff up so that we can begin processing the full 20,000 immigrant visas out of Havana as quickly as possible.”
  • “[Strengthen] family ties and . . . [facilitate] educational connections for American and Cuban people by expanding authorized travel. . . . [That includes] specifically authorizing commercial and charter flights to locations beyond Havana.  We are reinstating group people-to-people educational travel under a general license, among a number of other measures.  We are not reinstating individual people-to-people educational travel.”
  • “[w]e are increasing support for independent Cuban entrepreneurs.  That includes encouraging commercial opportunities outside the state sector by using . . . independent Cuban entrepreneurs’ access to the Internet, cloud technology, programming interfaces, e-commerce platforms, and a number of other measures, including access to microfinance and training.”
  • The U.S. “will ensure that remittances flow more freely to the Cuban people while not enriching those who perpetrate human rights abuses.  . . . [That includes] removing the limit on family remittances of $1,000 per quarter per sender/receiver pair.  And we’ll authorize donative remittances, which will support Cuban families and independent Cuban entrepreneurs.”

In addition, the new policy will “continue to elevate the matter of human rights, the treatment of political prisoners, and . . . elevate the issue of labor rights in Cuba, [which more generally is “a core priority for the Biden-Harris administration.”

The authorization of group travel to Cuba will be limited to purposeful purposes, not tourism.

More generally the new policy is intended “to help alleviate the humanitarian suffering that prompts out-migration from Cuba and also to advance our interest in supporting the Cuban people and ensuring that Cuban Americans and Americans in general are also the best advanced ambassadors for U.S. policy.”

The U.S. will be increasing the staff at the Havana Embassy “with an appropriate security posture.”

There was no mention at this briefing of two very significant U.S. policies regarding Cuba: the U.S. embargo of the island and the U.S. designation of Cuba as a “state sponsor of terrorism.” Therefore, both of them remain in effect with continued major impacts on the island and will be discussed below.

Reactions to the “New” U.S. Cuba Policy[2]

New Jersey Democratic Senator Bob Menendez, a Cuban-American and now the Chair of the Senate Foreign Relations Committee, welcomed the maintenance of the State Department’s Cuba Restricted List and the restart of the Cuban Family Reunification Parole program. But he was “dismayed” at its restarting group travel to the island because it will not breed democracy on the island and merely help the Cuban government fund its “continued repression.”

The harshest critic of the “new” policy was Ben Rhodes, who was President Obama’s Deputy National Security Advisor and involved in that administration’s efforts to normalize relations with Cuba. Said Rhodes, “Disappointed doesn’t begin to scratch the surface of how I feel about the Biden-Cuba policy. Granted it was Trump” who initially reversed Obama’s policies, but “then Biden doubles down” on Trump’s policies. We had Trump—in the most grotesque, callous way—politicizing this. But then Biden doubles down. It’s a gaslighting to those people in Cuba ” (deliberately and systematically feeding false information that  leads recipients to question what they know to be true). (Emphasis added).

Scott Hamilton, who served as U.S. charge d’ affaires in Havana during Obama’s opening to Cuba, said Biden’s measures do not reorient relations, but “are more about addressing the need to get the numbers [of Cuban [emigrants] down on migration.”

It also should be noted that Biden left Trump’s sanctions in place as the coronavirus pandemic overwhelmed the island’s medical system and strangled tourism, a crucial source of cash and goods for families. Allowing U.S. flights only to Havana ignores the difficulties of obtaining and paying for land transportation to other parts of the island, and most hotels are off-limits under U.S. regulations. Biden’s relaxing limits on remittances to families on the island is a good idea, but it does not cope with the difficulties of U.S. blacklisting of the financial institution for electronic fund transfers, Fincimex, due to its ties to the Cuban military. A leading U.S. expert on Cuba, William LeoGrande, a professor of government at American University, said, “What’s striking about these[Biden] measures is, there’s nothing about reopening the diplomatic dialogues that were ongoing at the end of the Obama administration.”

As a member of a church (Minneapolis’ Westminster Presbyterian) that since 2001 has had a partnership with a Presbyterian church in Matanzas, Cuba and members who actively provide and maintain clean-water systems on the island,I welcome the new Policy’s encouraging “faith-based organizations to provide humanitarian support.” I, therefore, reject Senator Menendez’s criticism of encouraging group travel to the island.

The Biden administration is hoping that these new measures will reduce Cuba’s soaring out-migration. Apprehensions of Cubans on the U.S.-Mexico border have rocketed to more than 113,000 in the first seven months of this fiscal year, nearly three times as many as in all of fiscal 2021. These emigrants include some activists who were protesting in the streets last year, teachers, farmers and parents of young children who decided they would be better off leaving as the island’s economy continued to tank, the Cuban government having not enacted significant reforms and Nicaragua lifted its visa requirement, making travel there easier. This exodus is sapping Cuba of much of its youth while its population is aging and declining.

Now these economic problems have been exacerbated by the following two recent events:

  • In August 2022 oil storage tanks near the city of Matanzas on the north coast of the island were destroyed by a lightning strike. That destruction resulted in a heavy human toll and a serious blow to fuel for Cuba’s electric power generating system, which already had been tottering from lack of maintenance and investment. The U.S., however has not offered any help in responding to this emergency other than telephonic technical assistance.
  • More recently, on September 26, Hurricane Ian, a Category 3 storm, slammed into the western end of the island. The next morning videos showed residents walking through waist-deep water as waves continued to crash on shore. Power lines, trees and siding could be seen littered along the roads. Electric power throughout the island was damaged.

U.S. Embargo of Cuba[3]

On October 19, 1960, almost two years after the Cuban Revolution had taken over the island’s government, the Eisenhower administration launched the U.S. trade embargo against Cuba that prohibited all U.S. sales of goods and services to Cuba except food and medicine. That embargo continues in effect today, nearly 62 years later, with amplification by many U.S. statutes.

Cuba claims that to date it has suffered significant economic damages from the embargo and the U.N. General Assembly every year since 1992 (except 2020 due to the Covid pandemic) has adopted resolutions, by overwhelming margins, condemning the embargo as a violation of international law.

The last session to approve such a resolution happened on June 23, 2021, when the vote was 184 to 2 (the U.S. and Israel in opposition) with three abstentions (Colombia, Ukraine and Brazil). Cuba’s Foreign Minister, Bruno Rodriguez Parrilla told the Assembly that the embargo was a “massive, flagrant and unacceptable violation of the human rights of the Cuban people” and  “an economic war of extraterritorial scope against a small country already affected in the recent period by the economic crisis derived from the pandemic” with estimated 2020 losses alone to be $9.1 million.

The U.S. opposition at the last session was offered by Rodney Hunter, the Political Coordinator for the U.S Mission, who said sanctions are “one set of tools in the U.S. broader effort toward Cuba to advance democracy, promote respect for human rights, and help the Cuban people exercise fundamental freedoms.” Moreover, despite the blockade, the US recognizes “the challenges of the Cuban people” and therefore, the US was “a significant supplier of humanitarian goods to the Cuban people and one of Cuba’s principal trading partners. Every year we authorize billions of dollars’ worth of exports to Cuba, including food and other agricultural commodities, medicines, medical devices, telecommunications equipment, other goods, and other items to support the Cuban people. Advancing democracy and human rights remain at the core of our policy efforts.”

The current session of the General Assembly on November 2, 2022, will consider this year’s report by the U.N. Secretary-General, “Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba.” The U.N. website for this report had a list of countries that had submitted comments (presumably supportive of the resolution), but did not include any comments from the U.S. or Israel, both of whom voted against the resolution in 2021, or from the three countries that abstained last year (Brazil, Colombia and Ukraine).

Therefore, it is fair to assume that the resolution against the U.S. embargo will again by overwhelmingly approved on November 2. Moreover, this blog continues to support abolishing the embargo.

U.S. Designation of Cuba as a “State Sponsor of Terrorism”[4]

Since 1982 the United States has had different opinions as to whether Cuba was a “state sponsor of terrorism” under three U.S. statutes—the Export Administration Act (section 6(j)), the Arms Export Control Act (section 40) and the Foreign Assistance Act (Section 620A)—that authorize the Secretary of State to designate countries that “have repeatedly provided support for acts of international terrorism” as “state sponsors of terrorism” and thereby impose sanctions on such countries, including restrictions on U.S. foreign assistance, bans on U.S. defense exports and sales, controls over exports of dual use items and miscellaneous financial and other restrictions.

We will look at these different positions, including the Biden Administration’s current review of the Trump Administration’s last minute designation of Cuba as a “State Sponsor.”

Cuba as “State Sponsor of Terrorism,” 1982-2014. From 1982 through 2014, the U.S. designated Cuba as such a Sponsor.[5]

U.S. Rescinds Cuba’s “Sponsor” Designation, 2015.  [6] On April 14, 2015, Secretary of State John Kerry publicly announced that the State Department had recommended that President Obama rescind the designation of Cuba as a “State Sponsor of Terrorism.” His press release stated that the prior week the “Department submitted a report to the White House recommending, based on the facts and the statutory standard, that President Obama rescind Cuba’s designation as a State Sponsor of Terrorism.”

“This recommendation,” the Statement continued, “reflects the Department’s assessment that Cuba meets the criteria established by Congress for rescission . . . . whether Cuba provided any support for international terrorism during the previous six months, and whether Cuba has provided assurances that it will not support acts of international terrorism in the future.” This conclusion was based, in part, upon “corroborative assurances received from the Government of Cuba.”

Nevertheless, according to the Secretary’s statement, “the United States has had, and continues to have, significant concerns and disagreements with a wide range of Cuba’s policies and actions, [but] these concerns and disagreements fall outside of the criteria for designation as a State Sponsor of Terrorism.”

The same day (April 14, 2015), a White House press release stated the President had “submitted to Congress the statutorily required report and certifications indicating the Administration’s intent to rescind Cuba’s State Sponsor of Terrorism designation.” That presidential decision was based upon the previously mentioned State Department recommendation that was based on its “careful review of Cuba’s record, which was informed by the Intelligence Community, as well as assurances provided by the Cuban government.”

This White House press release also stated, “As the President has said, we will continue to have differences with the Cuban government, but our concerns over a wide range of Cuba’s policies and actions fall outside the criteria that is relevant to whether to rescind Cuba’s designation as a State Sponsor of Terrorism.  That determination is based on the statutory standard – and the facts – and those facts have led the President to declare his intention to rescind Cuba’s State Sponsor of Terrorism designation.  More broadly, the [U.S.] will continue to support our interests and values through engagement with the Cuban government and people.”

President Obama’s simultaneous message to Congress certified that “(i) the Government of Cuba has not provided any support for international terrorism during the preceding 6-month period; and (ii) the Government of Cuba has provided assurances that it will not support acts of international terrorism in the future.”

U.S. Non-Designation of Cuba, 2016-2020.[7] From 2016 through the end of the Obama Administration in January 2017, the U.S. continued to not so designate Cuba as the U.S. and Cuba held several bilateral diplomatic meetings to discuss the many issues that had accumulated ever since the January 1, 1959, takeover of the Cuban government by the Cuban Revolution.

At  their May 2016 Law Enforcement Dialogue, the U.S. State Department said that “law enforcement is an area of mutual interest to both the U.S. and Cuba as we advance toward normalized relations. We anticipate that the dialogue will be productive, and an additional opportunity to reinforce the benefits of law enforcement cooperation. During the dialogue, the United States and Cuba will continue to discuss a wide range of areas of cooperation, including counterterrorism, counternarcotic, transnational crime, cybercrime, secure travel and trade, and fugitives.”

The framework for the dialogue was the May 2016 Memorandum of Understanding between the U.S. Department of Homeland Security and the Cuban Ministry of Interior. This MOU set the basis of cooperation in exchanging risk information for travelers, cargo or conveyances in international transit; the continuation of periodic, mutual, and reciprocal assessments regarding air, sea, and port security; and the coordination of transportation security, screening of cargo, travelers and baggage, and the design of secure, efficient inspection facilities at ports and airports, among other things.

The next month, June 2016,  the U.S. and Cuba met in Havana for their first Counterterrorism Technical Exchange. The State Department said, “Coordination and cooperation on counterterrorism has been one of several important topics discussed in law enforcement dialogues between the United States and Cuba. We welcome the opportunity to bring together technical experts to discuss this topic of common interest.” Afterwards, the Cuban Foreign Ministry said that the meeting was conducted with “respect and professionalism” and that “both parties agreed on the importance of progress in cooperation in this sphere and agreed to continue the meetings of technicians on the topic.”

During the last weeks of the Obama Administration in January 2017, the U.S. and Cuba signed the following four agreements:

  • Cuba Memorandum of Understanding on Law Enforcement “to cooperate in the fight against terrorism, drug trafficking, money laundering and other international criminal activities.”
  • Memorandum of Understanding to strengthen cooperation in the field of maritime and aeronautical search and rescue by enhancing effectiveness and efficiency in assisting persons in distress and to act in furtherance of obligations under international law.
  • U.S., Cuba and Mexico signed a treaty to set territorial limits in contested Gulf of Mexico waters. The treaty covers the Eastern Gap of the Gulf of Mexico, an area believed to be rich in oil and gas deposits. The three countries’ overlapping claims in the Eastern Gap had created what is known as a “Doughnut Hole.” Trilateral discussions begun in mid-2016 on the maritime territorial issue were concluded by the end of the year.
  • U.S. and Cuba memorandum of understanding to help prevent the introduction and spread of quarantine pests, animal and plant disease agents through the exchange of scientific information, best practices for the prevention and control of plagues and emerging diseases, collaborative scientific projects, including the use of technology, research and surveillance, and the holding of events on specific aspects of animal and plant health.

In addition, the Trump Administration for 2016, 2017, 2018, 2019 and 2020 did not designate Cuba as a “State Sponsor of Terrorism.”

U.S. Re-Designation of Cuba as “Sponsor,2021-22.[8] On January 11, 2021 (with only nine days left of the Trump Administration), U.S. Secretary of State Pompeo announced that Cuba was being re-designated as a “State Sponsor” to join Iran, North Korea and Syria. Here is what his statement said:

  • “The State Department has designated Cuba as a State Sponsor of Terrorism for repeatedly providing support for acts of international terrorism in granting safe harbor to terrorists.”
  • “The Trump Administration has been focused from the start on denying the Castro regime the resources it uses to oppress its people at home, and countering its malign interference in Venezuela and the rest of the Western Hemisphere.”
  • “With this action, we will once again hold Cuba’s government accountable and send a clear message: the Castro regime must end its support for international terrorism and subversion of U.S. justice.”
  • “For decades, the Cuban government has fed, housed, and provided medical care for murderers, bombmakers, and hijackers, while many Cubans go hungry, homeless, and without basic medicine.  Members of the National Liberation Army (ELN), a U.S.-designated Foreign Terrorist Organization, traveled to Havana to conduct peace talks with the Colombian government in 2017.  Citing peace negotiation protocols, Cuba has refused Colombia’s requests to extradite ten ELN leaders living in Havana after the group claimed responsibility for the January 2019 bombing of a Bogota police academy that killed 22 people and injured more than 87 others.”
  • “Cuba also harbors several U.S. fugitives from justice wanted on or convicted of charges of political violence, many of whom have resided in Cuba for decades.  For example, the Cuban regime has refused to return Joanne Chesimard, on the FBI’s Most Wanted Terrorists List for executing New Jersey State Trooper Werner Foerster in 1973; Ishmael LaBeet, convicted of killing eight people in the U.S. Virgin Islands in 1972; Charles Lee Hill, charged with killing New Mexico state policeman Robert Rosenbloom in 1971; and others.”
  • “Cuba returns to the SST list following its broken commitment to stop supporting terrorism as a condition of its removal by the previous administration in 2015.  On May 13, 2020, the State Department notified Congress that it had certified Cuba under Section 40A(a) of the Arms Export Control Act as “not cooperating fully” with U.S. counterterrorism efforts in 2019.”
  • “In addition to the support for international terrorism that is the basis for today’s action, the Cuban regime engages in a range of malign behavior across the region.  The Cuban intelligence and security apparatus has infiltrated Venezuela’s security and military forces, assisting Nicholas Maduro to maintain his stranglehold over his people while allowing terrorist organizations to operate.  The Cuban government’s support for FARC dissidents and the ELN continues beyond Cuba’s borders as well, and the regime’s support of Maduro has created a permissive environment for international terrorists to live and thrive within Venezuela.”
  • “Today’s designation subjects Cuba to sanctions that penalize persons and countries engaging in certain trade with Cuba, restricts U.S. foreign assistance, bans defense exports and sales, and imposes certain controls on exports of dual use items.”
  • “The United States will continue to support the Cuban people in their desire for a democratic government and respect for human rights, including freedom of religion, expression, and association.  Until these rights and freedoms are respected, we will continue to hold the regime accountable.”

So far in 2022, the U.S. has not taken any further action regarding this designation. However, at a July 21, 2022, press conference a journalist asked, “Is the administration’s position that Cuba still meets the legal requirements to be a state sponsor of terrorism?” The only response to that question came from  Ned Price, the Department’s spokesman, who said, “The fact pattern that led a previous administration to [so] designate Cuba . . . is in the public record.”

One year after the July 11, 2021 protests in Cuba, the United States recognizes the determination and courage of the Cuban people as they continue to fight for respect for human rights and persevere through repression during a historic year. We celebrate the Cuban people and commend their indomitable determination.

Conclusion

This blogger strongly favors a return to the Obama Administration’s pursuit of normalization of relations with Cuba as well as its rescinding the designation of Cuba as a “state sponsor of terrorism” and its support for abolishing the U.S. embargo. These opinions are further supported by the recent explosion of Cuba’s oil storage tanks and its being hit by Hurricane Ira as well as recognizing that Cuba is a much smaller country than the U.S. with much more limited military and security forces.

Comments from readers to correct or supplement any of the discussion or citations to the record of these complex issues would be appreciated.

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[1] White House, Background Press Call By Senior Administration Officials On New Cuba Policy (May  16, 2022).

[2] Sheridan & Chaoul, As Biden eases Trump’s sanctions, Cubans hope for an economic life, Wash. Post (June 2, 2022); Armario, Last year, Cubans took to the streets. Now they’re fleeing the island, Wash. Post (July 11, 2022); Isikoff, Former top Obama aide accuses Biden of ‘gaslighting’ Cuba: ‘Disappointed doesn’t begin to scratch the surface,’ Yahoo News (Sept. 14, 2022); Matanzas oil storage facility explosion, Wikipedia (Aug. 5, 2022); 17 missing, dozens hurt as fire rages in Cuban oil tank farm, MPRNews (Aug. 6, 2022); Fire at Cuban oil storage facility further exacerbated electricity shortages, wsws.org (Aug. 12, 2022); Cuba’s oil fire is contained—but the disaster has sparked U.S.-Cuba diplomatic flames, wusf news (Aug. 12, 2022); Finch, Residents in Cuba wake-up to waist-deep water after Ian makes landfall, Accuweather.com (Sept. 7, 2022); Last Minute, Hurricane Ian: the center leaves Cuban soil, but continues to hit with intense  winds, rains and strong swells, Diario de Cuba (Sept. 27, 2022); Byrne, Latest AccuWeather Eye Path forecast takes Ian’s landfall south of Tampa, Acuweather (Sept. 27, 2022); Live: the passage of Hurricane Ian through Cuba, Granma.com (Sept. 27, 2022); Cuba Foreign Ministry, The economic blockade against Cuba must end, (Sept. 7, 2022).

[3] United States embargo against Cuba, Wikipedia; UN General Assembly calls for US to end Cuba embargo for 29th consecutive year, UN News (June 23, 2021); U.N., Schedule of General Assembly Plenary and Related Meetings (Sept. 27, 2022). See also posts listed in the “U.S. Embargo” section of List of Posts to dwkcommentaries—Topical: Cuba (as of 5/4/20].

[4] See posts listed in “Cuba: State Sponsor of Terrorism?” section of List of Posts to dwkcommentaries: Topical—Cuba [as of 5/4/20].

[5] Ibid.

[6] See President Obama Rescinds U.S. Designation of Cuba as a “State Sponsor of Terrorism,” dwkcommentaries.com (April 15, 2015).

[7] Ibid.

[8] Crowley, Augustin & Semple, Pompeo Returns Cuba to Terrorism Sponsor List, Constraining Biden’s Plans, N.Y. Times (Jan. 11, 2021 & updated 2/15/21).

State Court Imposes Three-Year Sentence on Thomas Lane for Aiding and Abetting Manslaughter in Killing of George Floyd 

On September 21, 2022, Hennepin County District Court Judge Peter Cahill sentenced former Minneapolis police officer Thomas Lane to three years imprisonment based upon his May 18, 2022, guilty plea to aiding and abetting manslaughter of George Floyd.[1]

That guilty plea agreement included the prosecution’s agreeing to a three-year sentence, dropping the more serious count of aiding and abetting second-degree unintentional murder and agreeing to Lane’s service of the state sentence in the federal penitentiary where Lane was already imprisoned for his federal conviction after trial for depriving Mr. Floyd of his civil rights.

Before Judge Cahill imposed the sentence, Minnesota Assistant Attorney General Matt Frank stated that the three-year sentence was below the state sentencing guidelines of 41 to 57 months because Lane played a “somewhat less culpable role” in Floyd’s death than Derek Chauvin by twice suggesting to Chauvin, who was the officer in charge, that Floyd should be turned over on his side.

Also before imposition of the sentence, attorney Frank read a statement from the Floyd family that said, “Talk about move on? Wow. Really? Me and my family would love to move on, but there’s just not a lot of accountability. We will always show up for George Floyd, but never move on.”

In remarks about the sentence, Judge Cahill said that Lane would have to register as a predatory offender “if required by law.” This prompted a subsequent response by Lane: “I gotta register as a predatory offender?” when his role was “minimal” when compared with Chauvin’s. “What the [explicative] is that? That’s what Chauvin has to do. If I have a minimal role, why the [explicative] do I have to do that?” [After the hearing, legal experts told journalists that this was standard language in Minnesota criminal cases, but that neither Lane nor Chauvin would be required to do so.]

Judge Cahill also stated, “I think it was a very wise decision for [Lane] to accept responsibility and move on with your life.”

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[1] Ex-cop Lane gets 3 years for role in George Floyd’s death, StarTribune (Sept. 21, 2022); Tumin & Bogel-Burroughs, Former Minneapolis Officer Sentenced to Three Years in George Floyd Case, N.Y. Times (Sept. 21, 2022); Forliti, Ex-cop Lane gets 3 years for role in George Floyd’s death, AP News (Sept. 21, 2022). See also Ex-Officer Thomas Lane Pleads Guilty to State Charge of Aiding and Abetting Manslaughter of George Floyd, dwkcommentaries.com (May 18, 2022); Comment: More Details on Thomas Lane’s Guilty Plea, dwkcommentaries.com (May 19, 2022).

 

 

Kueng and Thao Reject Proposed Deals for State Guilty Pleas for George Floyd Killing     

On August 15, 2022, in Hennepin County District Court Minnesota Assistant Attorney General Matthew Frank offered the following plea deal to J. Alexander Kueng and Tou Thao: (a) drop their convictions for aiding and abetting the second-degree murder of George Floyd in exchange for their pleading guilty to the lesser charge of aiding and abetting manslaughter and (b) recommending a three-year prison sentence to be served concurrently with their federal sentences of three years for Kueng and 3 ½ years for Thao.[1]

With Judge Peter Cahill presiding, both men rejected the proposed plea deal with Thao saying, “It would be a lie and a sin for me to accept a plea deal.”

Prosecutor Frank added that the proposed plea deal thus had expired, and the two men still faced their scheduled October 24th trial in this court.

Before the public hearing, Judge Cahill rejected a request from both defense attorneys to hold today’s proceedings in private chambers to avoid media attention. Thao’s attorney said allowing it to proceed in open court made it purely for “public consumption” and would impede a fair trial, while Kueng’s attorney said prosecutors have unfairly taken advantage of the media spectacle around the high-profile cases against the officers. Judge Cahill, however, said he didn’t see how their clients declining to plead guilty would harm their credibility with a jury. The Judge also denied Thao’s attorney’s request to gag prosecutors from talking to reporters.

In a subsequent public statement, Attorney General Keith Ellison said  it’s “a standard best practice” to make a record in court when prosecutors offer a plea agreement to ensure the defendant is making a knowing and free decision. The defendants have a right to decline the offer and proceed to trial. The State is ready for trial.”

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[1] Mannix, Tou Thao, J. Alexander Kueng reject plea deal offered by state prosecutors in George Floyd killing, StarTribune (Aug. 15, 2022);  Karnowski, Thao, Kueng say they rejected plea deal in Floyd killing, Assoc. Press (Aug. 15, 2022).

 

 

 

Completion of Federal Criminal Cases Over Killing of George Floyd

The federal criminal cases over the May 2020 Minneapolis killing of George Floyd started with the May 2021 grand jury indictment of the four ex-Minneapolis police officers who were involved (Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thao). The significant subsequent events in those cases were the December 2021 guilty plea of Chauvin; the January-February 2022 federal jury trial of the other three defendants and their guilty verdict; and the July 2022 sentencing of all four defendants. Here are some of the details of those events.

The Criminal Indictment[1]

On May 7, 2021, the U.S. District Court for the District of Minnesota unsealed the federal grand jury indictment of four ex-Minneapolis police officers (Chauvin, Lane, Kueng and Thao) for allegedly using the “color of the law” on May 25, 2020 to deprive  George Floyd of his constitutional rights to be “free from the use of unreasonable force” when Chauvin held Floyd down by the neck for more than nine minutes while the others did nothing to stop Chauvin. In addition, all four were charged with failing to help provide medical care to Floyd and “thereby acting with deliberate indifference to create a substantial risk of harm.”

Chauvin’s Guilty Plea[2]

On December 15, 2021, at the St. Paul federal courthouse Derek Chauvin pleaded guilty to two counts of depriving George Floyd of his federally-protected civil rights by pinning his knee against Floyd’s neck and by failing to provide medical care for Floyd on May 25, 2020, ultimately causing his death. Chauvin also pleaded guilty to separate federal charges for holding down with his knee a 14-year-old boy in 2007 and failing to provide medical care to the boy and thereby causing non-fatal injuries.

On May 4, 2022, U.S. District Judge Paul Magnuson issued an Order accepting Chauvin’s plea agreement and stating that the court “will sentence Defendant in accordance with the terms of the plea agreement,” which provided that both sides agreed he should face a sentence from 20 to 25 years.

Federal Criminal Trial of the Other Three Defendants[3]

Lane , Kueng and Thao went to trial on these charges in January 2022. On February 24, 2022, the jury rendered its verdict that all three were guilty of all charges.

Federal Sentencing of Chauvin[4]

On July 7, 2022, in accordance with that approved plea agreement, Judge Magnuson  sentenced Chauvin to 245 months (20.4 years) in federal prison for these crimes. Said the Judge, ““I really don’t know why you did what you did. But to put your knee on another person’s neck until they expire is simply wrong and for that conduct you must be substantially punished. Your conduct is wrong and it is offensive. To put a knee on another person’s neck is unconscionable.” In addition, the Judge said that Chauvin’s taking control of the Floyd arrest had “absolutely destroyed the lives of three other young officers [Lane, Kueng and Thao].”

Federal Sentencing of Lane[5]

On June 29, 2022, federal prosecutors in a written brief asked the federal court to impose a sentence of up to 6.5 years for Lane’s conviction.

At the July 21st hearing on Lane’s sentencing, Assistant U.S. Attorney Manda Sertich argued, “It is fair and reasonable for a police officer to act when they both appreciate the seriousness of the situation and have the training to make a difference. But there has to be a line where blindly following a senior officer’s lead even for the newest officers cannot be acceptable and that line is surely crossed when someone is dying slowly in front of the new officer.” Moreover, she said, Lane’s decision not to provide Floyd with medical aid was a “catastrophic lapse” that resulted in Floyd’s death.

In response, Lane’s attorney, Earl Gray, argued that Lane should receive downwards departures from the sentencing guidelines because he was “substantially less culpable” than the other defendants and had accepted responsibility for the crime with his guilty plea to the state criminal charges.

Others who made comments at the hearing were George Floyd’s brother, Philonise Floyd, who asked the judge to impose the maximum sentence on Lane, and George Floyd’s girlfriend, Courtney Ross, who said she did not believe Lane was a bad guy, but still had to pay his dues while hoping that he would find his “inner hero” when he gets out of prison.

U.S. District Court Judge Paul Magnuson then sentenced Lane to 30 months (2 ½ years) in federal prison followed by two years of supervised release. The Judge noted the Court’s receipt of 145 letters with favorable comments on Lane and his being less responsible for Floyd’s killing as favoring a lesser sentence even though this was “a very serious offense wherein a life was lost. The fact that you did not get up and remove Mr. Chauvin from Mr. Floyd when Mr. Floyd became unresponsive is a violation of the law.”

Judge Magnuson also said he would urge the federal Bureau of Prisons to send Lane to a facility in Duluth and set a self-surrender date of October 4th after Lane’s September 21st state court sentencing on his guilty plea.

Afterwards a retired Bloomington, MN police officer, Richard Greelis, expresses his belief that Lane, a four-day officer, “should never have been charged with a crime” because “rookie officers are impressed . . . to follow the advice and example of both the FTO [here, Chauvin] and all veteran officers on the street. . . . Rookies would be totally out of their league without their FTO there to guide them. Believe me, all the training in the world does not and cannot prepare you for that first day in uniform.”

Federal Sentencing of Kueng and Thao[6]

On July 22, 2022, Judge Magnuson held a hearing to announce that he would calculate the offense levels for the sentences on Kueng and Thao on the involuntary manslaughter charge, not the second-degree murder charge. This was because the Judge said, “the evidence showed that Kueng genuinely thought that Mr. Floyd was suffering from excited delirium with a drug overdose, and Thao genuinely believed that the officers were dealing with a drug overdose with possible excited delirium.” As a result, said the Judge, these facts precluded the element of “malice aforethought” necessary to prove second-degree murder.

At this hearing, the Judge also rejected the two men’s claims that they were entitled to lesser sentences because they were acting under “color of law” because their positions in law enforcement were addressed in their criminal convictions.

Kueng. At a July 27th hearing Judge Magnuson sentenced Kueng to three years in prison. According to the Judge, there was no question that Kueng violated Floyd’s rights by failing to get off him when Floyd became unresponsive. But there was “an incredible number “ of letters supporting Kueng from other police officers that emphasized his rookie status. The prison term will begin this coming October.

Thao. At a second July 27th hearing, Thao spent over 30 minutes reading aloud several Biblical passages. Judge Magnuson sentenced Thao to 3 ½ years, to begin this coming October.

Conclusion

Absent an appeal by either or both Kueng and Thao from their convictions and/or sentences, the four federal criminal cases over the death of George Floyd have been concluded.

Both Kueng and Thao, however, still face an October 24th trial in Minnesota state court on charges of aiding and abetting both second-degree murder and second-degree manslaughter. Now, however, there is an incentive for these two men to seek a guilty plea to the state charges for sentences not exceeding these federal sentences, to be served concurrently in federal prison. [7]

=============================

[1] Federal Criminal Charges Against Ex-Minneapolis Policemen Over George Floyd Killing, dwkcommentaries.com (May 7, 2021).

[2] Derek Chauvin Pleads Guilty to Federal Criminal Charges Over Killing of George Floyd, dwkcommentaries.com (Dec. 16, 2021); Comment: Federal Court Accepts Chauvin’s Plea Agreement, dwkcommentaries.com (July 7, 2022);

[3] Federal Criminal Trial for Killing George Floyd: Jury Deliberations and Verdict, dwkcommentaries.com (Feb. 25, 2022). Further details of this criminal prosecution are provided in posts listed in the “Federal Criminal Cases Against Ex-Minneapolis Policemen Over Killing of George Floyd (and Against Derek Chauvin over Excess Force Against Teenager)” section of List of Posts to dwkcommentaries—Topical: George Floyd Killing.

[4] Federal Court Sentences Derek Chauvin to 245 Months (20.4 years) for Depriving George Floyd (and John Pope) of Their Federal Civil Rights, dwkcommentaries.com (July 8, 2022).

[5] Federal Prosecution Proposes Criminal Sentences for Ex-Officers Lane, Kueng and Thao’s Convictions for Involvement in the Killing of George Floyd, dwkcommentaries.com (July 2, 2022); Montemayor, Ex-officer Thomas Lane sentenced to 2 ½ years in prison for violating George Floyd’s civil rights, StarTribune (July 21, 2022); Kummer & Bogel-Burroughs, Ex-Officer Who Held George Floyd’s Legs Sentenced to 30 Months in Prison, N.Y. Times (July 21, 2022); Collins, Ex-cop Lane gets 2 ½ years for violating George Floyd’s civil rights, MPRnews (July 21, 2022); Judgment in a Criminal Case, U.S. v. Lane, Case No. 0:21-CR-00108 (4), U.S. Dist. Ct., D. MN (July 21, 2022); Greelis, George Floyd murder: Reduced sentence for rookie officer makes sense, StarTribune (July 25, 2020).

[6] Montemayor, Kueng sentenced to 3 years, Thao 3 ½ years for violating George Floyd’s civil rights, StarTribune (July 27, 2022) Forliti (AP), Ex-cops Kueng, Thao sentenced for violating Floyd’s rights, Wash. Post (July 27, 2022); Kummer & Bogel-Burroughs, Last 2 Officers Involved in George Floyd’s Death Are Sentenced to Prison, N.Y. Times (July 27, 2022) .

[7] Judge agrees to move trial of two former Minneapolis officers to October in George Floyd’s death, StarTribune (June 21, 2022). Resetting State Criminal Trial Date for Kueng and Thao for Killing of George Floyd, ddwkcommentaries.com (June 21, 2022). [Comment:] District Court Order Regarding New Trial Date, dwkcommentaries.com (June 24, 2022).

 

 

Federal Court Sentences Derek Chauvin to 245 months (20.4 years) for Depriving George Floyd (and John Pope) of Their Federal Civil Rights

On July 7, 2022, in the U.S. District Court in St. Paul, Minnesota, Judge Paul A. Magnuson sentenced Derek Chauvin to 245 months (20.4 years) in federal prison for (a) his depriving George Floyd of his federal civil rights by pinning his knee against Floyd’s neck and by failing to provide medical care for Floyd on May 25, 2020, ultimately causing his death and (b) Chauvin’s holding down with his knee John Pope, then  a 14-year old boy in 2007, and failing to provide medical care to the boy and thereby causing non-fatal injuries. [1]

At the hearing, Judge Magnuson said, “I really don’t know why you did what you did. But to put your knee on another person’s neck until they expire is simply wrong and for that conduct you must be substantially punished. Your conduct is wrong and it is offensive. To put a knee on another person’s neck is unconscionable.” In addition, the Judge said that Chauvin’s taking control of the Floyd arrest had “absolutely destroyed the lives of three other young officers [Thomas Lane, J. Alexander Kueng and Tou Thao].”

Other Comments at the Hearing

Before the Judge announced the sentence, the federal prosecutor, LeeAnn Bell, said the sentence “needs to reflect the intentionality. He wasn’t a rookie. He’d been a police officer for years. He knew what his training was. He knew what he was doing was wrong and he did it anyway.” The prosecution’s request for the longer sentence of 25 years reflected that fact that Chauvin’s crime against John Pope was not part of the state case over the killing of George Floyd, for which Chauvin previously was convicted and sentenced by the state court.

George Floyd’s brother, Philonise, said, “I haven’t had a real night’s sleep since this happened. Hearing my brother beg and plead for his life again and again, screaming for our mom.” His family had received a “life sentence. We will never get George back.”

Courtney Ross, Floyd’s girlfriend, in a written statement read by the Judge said, “I don’t hate you, Mr. Chauvin. I’m working on forgiving you because that’s what George Floyd would want me to do.”

John Pope told the court that his encounter with Chauvin had changed him from a “happy’ person to someone who saw his dreams “slip from my hands.” Pope hopes Chauvin takes this time to think about what he could have done differently and what he did to others,” noting that Chauvin’s actions against him had gone unchallenged until Floyd’s killing.

Chauvin’s attorney, Eric Nelson, told the court that Chauvin had received over 1,000 letters of support, evidencing his good “character and qualities as a human being,” that Chauvin had already been punished by [the State of Minnesota] for the offenses [against Mr. Floyd] and that Chauvin had accepted his wrongdoing and had expressed remorse for the harm that has flowed from his actions.

Chauvin himself said that he wanted “to wish [Floyd’s children] all the best in their life and have excellent guidance in becoming great adults.” To John Pope, Chauvin said, “I hope you have a good relationship with your mother and also your sister, and I hope you have the ability to get the best education possible to lead a productive and rewarding life.” But Chauvin did not apologize.

Chauvin’s mother, Carolyn Pawlenty, thanked his supporters and denounced the “misinformation” in media that her son is a racist and has no heart. Everyone in Minnesota needs to heal and realize that all lives matter, no matter the color of your skin. Every life matters.” She then asked for federal prison placement in Minnesota or Iowa to be close to his family.

Background for the Hearing[2]

On December 15, 2021, Chauvin pleaded guilty to two counts of depriving Mr. Floyd of his federally-protected civil rights and ultimately causing his death and to the charges for his 2017 misconduct with Mr. Pope, and under the negotiated Plea Agreement the prosecution and Chauvin agreed that the court could impose imprisonment of 20 to 25 years for these crimes.

This plea agreement was approved by Judge Magnuson on May 4, 2022, when he said the federal sentence would be in accordance with that plea agreement.

Conclusion[3]

Since his conviction on the state criminal charges, Chauvin has been in “administrative segregation” in Minnesota’s maximum security prison in Oak Park Heights, MN and largely confined to a 10-by-10-foot room with about one hour a day outside for exercise.

Now he will be transferred to a federal prison. The federal Bureau of Prisons will decide where Chauvin will be assigned, after evaluating his medical or programming needs, separation and security measures to ensure his protection and proximity to his release residence. Experts speculate that he probably will start in a medium-security facility. Former U.S. Attorney Tom Heffelfinger observed, “It’s dangerous to be an officer in any prison. It’s even more dangerous in state prison because of the nature of the inmate population. There are gangs, for example. And police officers just don’t do well there. Those risks are reduced in a federal prison.”

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1  U.S. Sentencing Memorandum, U.S. v. Chauvin, Criminal No. 21-108(01), U.S. Dist. Ct. MN (June 22, 2022); Defendant’s Position Regarding Sentencing, U.S. v. Chauvin, Criminal No. 21-108(01), U.S. Dist. Ct. MN (June 22, 2022); Montemayor, Derek Chauvin’s federal sentencing scheduled for Thursday, StarTribune (July 5, 2020); Karnowski (AP), Derek Chauvin to be sentenced Thursday in St. Paul on federal charges in George Floyd killing, Pioneer Press (July 5, 2022); Almasy, Derek Chauvin to be sentenced Thursday on  federal charges, cnn.com (July 7, 2022); Bailey, Derek Chauvin faces federal sentence for Floyd’s killing, Wash. Post (July 7, 2022); Collins & Sepic, George Floyd killing: Derek Chauvin sentencing underway in federal court, MPRNews (July 7, 2022); Karnowski (AP), Chauvin gets 21 years for violating Floyd’s civil rights, AP News.com (July 7, 2022); Bailey, Chauvin sentenced to 20 years for violating Floyd’s civil rights, Wash. Post (July 7, 2022); Sepic & Collins, Ex-cop Chauvin gets 20-plus years for violating George Floyd’s civil rights, MPRNews (July 7, 2022); Senter & Dewan, Killer of George Floyd Sentenced to 21 Years for violating civil rights, N.Y. Times (July 7, 2022).

[2] Federal Criminal Trial for Killing George Floyd: Jury Deliberations and Verdict, dwkcommentaries.com (Feb. 25, 2022); Derek Chauvin Pleads Guilty to Federal Criminal Charges Over George Floyd Killing and Excess Force Against Teenager, dwkcommentaries.com (Dec. 16, 2021); Comment: Federal Court Accepts Chauvin’s Plea Agreement, dwkcommentaries.com (July 7, 2022); Order, U.S. v. Chauvin, Criminal No. 21-108(01), U.S. Dist. Ct. MN (May 4, 2022).

[3]   EXPLAINER: Chauvin heads to federal prison for Floyd’s death. StarTribune (July 7, 2022).

Federal Prosecution Proposes Criminal Sentences for Ex-Officers Lane, Kueng and Thao’s Convictions for Involvement in the Killing of George Floyd

On June 29 , federal prosecutors asked the U.S. District Court for the District of Minnesota to impose a sentence of up to 6.5 years for Thomas Lane’s conviction for his involvement in the May 2020 killing of George Floyd. The prosecutors also asked on June 29 and 30 for higher sentences for ex-officers J. Alexander Kueng and Tou Thao, who also have been convicted for their involvement in that killing.[1]

The prosecution’s reasons for these recommendations were very detailed in compliance with the requirements of the federal statute for the imposition of sentences (18 U.S.C. sec. 3553).

All of these convictions are based upon a February 2022 federal jury’s verdict of guilty for these three men for violating Floyd’s civil rights by failing to give Floyd medical care while Kueng also was found guilty of not trying to stop Derek Chauvin from using excessive force. [2]

Reasons for Proposed Sentence of Lane[3]

According to the prosecution, a “within guideline range sentence of 63 months (5.25 years) to 78 months (6.5 years) [for Lane] is reasonable and appropriate in light of the serious consequences of . . . Lane’s criminal omissions and in consideration of the 18 U.S.C. sec. 3553(a) factors.”

“As the jury necessarily found, . . . [Lane] recognized that  . . . Floyd was suffering from a serious medical need and failed to provide him with the basic medical aid and that . . .[Lane] was trained and duty-bound to give such aid at a time when that would have made a difference. . . . . [Lane’s] failure to provide medical aid had serious consequences for Mr. Floyd, Mr. Floyd’s family, . . . Lane’s fellow law enforcement officers, and the broader community. . . . [This proposed sentence] is justified by the gravity and impact of his inaction.”

The prosecution then rejected, with appropriate legal citations, the following Lane objections to this proposed sentence:  (1)  the victim was lawfully restrained; (2) Lane was a minimal participant in the restraint; (3) there was double counting of Lane’s status as someone acting under color of law; and (4) Lane’s guilty plea justifies a downward adjustment because it came after conviction at trial.

Next the prosecution argued that the section 3553(a) factors justified a within-guidelines sentence for Lane: the nature and circumstances of the offense (Lane was well placed to save Floyd’s life) and Lane had information about Floyd’s condition and information and training of how to respond to this condition. In addition, a guideline-range sentence will most appropriately capture the significance of Lane’s inaction, the lasting harm his inaction inflicted on Floyd, the other officers and the larger community.”

Lane’s being a police officer is another reason justifying a higher sentence, and his relative inexperience as an officer is undermined by Lane’s recognition of Floyd’s condition and Lane’s initial training and knowledge.

A within-guidelines sentence of Lane “will remind other officers of their constitutional obligations as law enforcement officers, including an affirmative obligation to protect the lives and safety of those in their custody and thus serve to protect the American public by promoting respect for the law.

Therefore, Lane “should be sentenced to a within-guidelines sentence of 63 months (5.25 years) to 78 months (6.5 years).”

This statement by the prosecution also constitutes a rejection of Lane’s motion for a downward sentencing variance.

Reasons for Proposed Sentence of Kueng[4]

The prosecution argued that a sentence of Kueng should be “significantly more “ than the proposed sentence of 63 to 78 months for Lane because (1) Kueng abused state powers to cause the death of . . . Floyd; (2) Kueng lacked “acceptance of responsibility , including his (at time obstructive and incredible) trial testimony;” (3) the need to promote respect for the law and deter other police officers from standing by as their fellow officers inflict abuses on unresisting arrestees,” and (4) “the need for consistency with respect to other cases in which officers have been convicted of failing to intervene to protect an arrestee from abuse.” The prosecution also argued that Kueng’s sentence should be less than the expected sentence of 240-300 months of imprisonment for Derek Chauvin.

Reasons for Proposed Sentence of Thao[5]

The prosecution argued that Thao’s sentence would be less than the 240-300 months’ anticipated sentence for Chauvin and “significantly more that the Guidelines range applicable to . . . Lane . . . of 63 to 78 months’ imprisonment. Such a sentence is sufficient, but not greater than necessary, to comply with the requirements of 18 U.S.C. sec. 3553(a).”

This proposal, said the prosecution, was justified by the following: (1) ‘the offense resulted in the death of . . Floyd, and thus caused the gravest of harms;” (2) “Floyd was in [Thao’s] custody and care and [he] knew he had a duty to protect . . . [Floyd];” (3) Thao “had the knowledge, opportunity, information and time to recognize the need for action to stop the unreasonable force and to provide medical aid—and yet he failed to act;” (4) Thao’s “lack of acceptance of responsibility, including his (at times incredible)  trial testimony merits a significant sentence;” and (5)  “a significant sentence is needed to promote respect for the law and to deter other police officers from standing by as their fellow officers commit a crime.”

Thao, on the other hand, stated he believes the appropriate calculated Guidelines Range for him is 24-30 months  and requested the Court to impose a sentence of 24 months imprisonment. “This sentence would be sufficient, but not greater than necessary to achieve the goals outlined in [section] 3553.”

Conclusion

We all now wait to see if these defendants offer any other contrary arguments and the decisions on the sentences by Judge Magnuson.

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[1] Montemayor, Federal prosecutors seek up to 6 ½ years for ex-officers for violating George Floyd’s civil rights, StarTribune (June 29, 2022); Karnowski (AP), Prosecutors seek prison for 3 ex-cops in Floyd killing, StarTribune (June 29, 2022); Montemayor, Feds ask for up to 6 ½ years  in prison for ex-MPD officer Thao for failing to help George Floyd, StarTribune (June 30, 2020).

[2] Federal Criminal Trial for Killing George Floyd: Jury Deliberations and Verdict, dwkcommentaries.com (Feb. 25, 2022).

[3]  United States’ Sentencing Memorandum, U.S. v. Lane, Case 0:21-cr-0018, U.S. Dist. Ct., D. MN (June 29, 2022); Ex-Officer Thomas  Lane Pleads Guilty State Charge of Aiding and Abetting Manslaughter of George Floyd, dwkcommentaries.com (May 18, 2022).

[4]  Government’s Position with Respect to Sentencing, U.S. v. Kueng,, Case 0-21-cr-00188, U.S. Dist. Ct. MN (June 29, 2022); Defendant Kueng’s Motion for a Sentencing Variance, U.S. v. Kueng,, Case 0-21-cr-00188, U.S. Dist. Ct. MN (June 29, 2022).

[5] Government’s Position with Respect to Sentencing, U.S. v. Thao, U.S. Dist. Ct. MN, Case No. 0:21-cr-00108 (June 30,2022); Defendants’ Position with Respect to Sentencing, U.S. v. Thao, U.S. Dist. Ct. MN, Case No. 0:21-cr-00108 (June 30,2022).

 

U.S. 2021 Report on International Religious Freedom

On June 2, 2022, the U.S. State Department released its 2021 Report on International Religious Freedom. It “describes the status of religious freedom in every country. The report covers government policies violating religious  denominations and individuals, and U.S. policies to promote religious freedom around the world. The U.S. Department of State submits the reports in accordance with the International Religious Freedom Act of 1998.”[1]

The Report includes these sources on the subject: (a) Universal Declaration of Human Rights; (b) International Covenant on Civil and Political Rights; (c) Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief; (d) Religious Freedom Provisions, Commitments, and Obligations from Regional Bodies and Instruments; (e) Department of State Training Related to the International Religious Freedom Act-2021; (f) Department of Homeland Security and the International Religious Freedom Act; and (g) Overview of U.S. Refugee Policy—2021.

There is no overall summary of this freedom in 2021 throughout the world. Instead, as the above summary indicates, the report has separate reports for “every country” in the world. After a summary of its report on Cuba, which is chosen because a Minneapolis church, Westminster Presbyterian, has had partnerships with the island’s Presbyterian-Reformed Church since 2002, there will be general comments from that Cuban church and Westminster.

State Department Report on Cuba

Cuban Religious Demography

According to the Report, “The U.S. government estimates the total population at 11 million (midyear 2021).  There is no independent, authoritative source on the overall size or composition of religious groups.  The Catholic Church estimates 60 percent of the population identifies as Catholic.  Membership in Protestant churches is estimated at 5 percent.  According to some observers, Pentecostals and Baptists are likely the largest Protestant denominations.  The Assemblies of God reports approximately 150,000 members; the four Baptist conventions estimate their combined membership at more than 100,000.”

“Jehovah’s Witnesses estimate their members at 95,000; Methodists 50,000; Seventh-day Adventists 36,000; Presbyterians 25,000; Anglicans 22,500; Episcopalians 10,000; Anabaptists 4,387 (mostly Iglesia de Los Hermanos en Cristo, the Brethren of Christ); Quakers 1,000; Moravians 750; and the Church of Jesus Christ 357 members.  There are approximately 4,000 followers of 50 Apostolic churches (an unregistered, loosely affiliated network of Protestant churches, also known as the Apostolic Movement) and a separate New Apostolic Church associated with the New Apostolic Church International.  According to some Christian leaders, evangelical Protestant groups continue to grow in the country.  The Jewish community estimates it has 1,200 members, of whom 1,000 reside in Havana.  According to a representative of the Islamic League, there are approximately 4,000 Muslims in the country, of whom fewer than half are native-born.  The representative also said that the majority of the Muslim population is Sunni.  Immigrants and native-born citizens practice several different Buddhist traditions, with estimates of 6,200 followers.  The largest group of Buddhists is the Japanese Soka Gakkai; its estimated membership is 1,000.  Other religious groups with small numbers of adherents include Greek Orthodox, Russian Orthodox, and Baha’is.”

“Many individuals, particularly Afro-Cubans, practice religions with roots across Africa, including Yoruba groups often referred to by outsiders as Santeria, but by adherents as the order of Lucumi or Orisha worship.  Bantu-influenced groups refer to themselves as Palo Monte.  These religious practices are commonly intermingled with Catholicism and other forms of Christianity, and some require Catholic baptism for full initiation, making it difficult to estimate accurately their total membership.  Rastafarian adherents also have a presence on the island, although the size of the community is unknown.”

Religious Freedom in Cuba

According to the Report’s Executive Summary, “The country’s constitution contains written provisions for religious freedom and prohibitions against discrimination based on religious grounds.  According to the religious freedom advocacy organization Christian Solidarity Worldwide (CSW), the Cuban Communist Party (CCP), through its Office of Religious Affairs (ORA) and the Ministry of Justice (MOJ), continued to control most aspects of religious life.  In its annual Watch List, Open Doors reported a continued rise in persecution of Christians in the country.  According to media, on July 11, security forces (a general term covering military, police, and vigilante forces) committed acts of violence against, detained, and harassed religious leaders from multiple faith communities who were participating in peaceful demonstrations across the country.  According to Human Rights Watch (HRW), security forces beat Roman Catholic priest Jose Castor Alvarez Devesa when he offered aid to an injured person at a protest in Camaguey on July 11.  CSW reported Pastor Lorenzo Rosales Fajardo faced up to a 10-year sentence for participating in a march the same day.  Rosales Fajardo was found guilty of charges in December and awaited sentencing at year’s end.  Sissi Abascal Zamora, a member of the Ladies in White opposition group, received a six-year sentence for participating in the July protests.  Authorities continued to subject members of the Association of Free Yorubas of Cuba (Free Yorubas) to arbitrary detentions, threats, physical violence, and verbal harassment.  The U.S.-based nongovernmental organization (NGO) Global Liberty Alliance reported four members of Free Yorubas faced extended pretrial detention after their arrests following the July protests and prison sentences of up to 10 years.  The Spanish NGO Cuban Observatory of Human Rights registered at least 30 acts against leaders and laypersons from multiple faith communities as the government attempted to suppress public support for peaceful protests called for November 15.  According to NGO and media reports, those actions included the orchestration of demonstrations (acts of repudiation) in front of the homes of Catholic priests, police surveillance, internet cuts, and the harassment of a nun as she left her residence in Havana to meet a friend.  In August, security service officials arrested Apostolic Church pastor Alain Toledano Valiente for ‘propagating the COVID pandemic’ when he held what he said was a socially distanced service.  Religious groups reported the ORA and MOJ continued to deny official registration to certain groups, including to several Apostolic churches, or did not respond to long-pending applications, such as those for the Jehovah’s Witnesses and The Church of Jesus Christ of Latter-day Saints (Church of Jesus Christ).”

“Some religious groups and organizations, such as the Catholic charity Caritas, continued to gather and distribute relief items, providing humanitarian assistance to individuals regardless of religious belief.  The Catholic-affiliated Community of Sant’Egidio continued to hold prayer and small group meetings in spite of COVID-19 restrictions.”

“Due to a lack of government responsiveness, U.S. embassy officials did not meet with or otherwise engage the ORA during the year.  In public statements and on social media, U.S. government officials, including the Secretary of State, continued to call upon the government to respect the fundamental freedoms of its citizens, including the freedom of religion.  Embassy officials met regularly with a range of religious groups concerning the state of religious freedom and political activities related to religious groups’ beliefs.”

“On November 15, 2021, in accordance with the International Religious Freedom Act of 1998, as amended, the Secretary of State again placed Cuba on the Special Watch List for having engaged in or tolerated severe violations of religious freedom.”

Recent Devotion from Cuban Presbyterian-Reformed Church[3]

The Presbyterian Reformed Church in Cuba prepares daily devotions in Spanish (with English translations) that are available on the Internet. Here, for example, is their devotion for June 26, 2022, the 132nd Anniversary of the church: “Following Jesus (Luke 9:51-62).”

“Jesus replied, ‘No one who puts his hand to the plow and looks back is fit for service in the kingdom of God.’”

“A new section of the Gospel of Luke begins with these verses, Jesus’ resolve to travel to Jerusalem.   The three candidates for discipleship illustrate the demands that are implied by following Jesus; they teach that emotional enthusiasm is not sufficient and neither are we capable of abandoning all to follow him.”

“Loyalty to Christ takes precedence over any other loyalties.   In one of the cases the man tried to excuse himself by saying that he had to care for his dead father.   The spiritually dead should bury their dead, but the followers of Jesus should fulfill the urgent work of proclaiming the good news.   This is not an argument in favor of insensitivity but is a lesson against delay in fulfilling an order.”

“Jesus focuses his attention on one truth: to serve his cause demands complete dedication. To not be suitable for the Reign of God means a discipleship through which God is unable to use us in the best way.”

“What does Jesus want of us?   Complete dedication, not half delivery.   We don’t have the right to follow him at our convenience; we should accept the cross together with the crown, judgment together with mercy.   One must take into account the cost and to be ready to abandon everything.   We should not allow anything to distract us from the path of living what he calls good and true.”

“Prayer: Lord, allow us to be alert to your call and not continually excuse ourselves.   In the name of Jesus, Amen”

Report from Westminster Presbyterian Church[4]

“For more than 20 years, Westminster has had a partnership with people and institutions in Cuba, making it our longest global partnership. Well over 100 Westminster members and staff have visited Cuba to experience the culture, welcome, and resilience of the Cuban people. The situation in Cuba remains dire due to food shortages, economic despair, and political unrest. Yet, as of January 1, our partner church, El Redentor/Versalles (Versalles) in Matanzas has welcomed a new pastor, the Rev. Anays Noda, and her family. They bring a renewed energy and new members into the church.”

“After building renovation and much hard work, our siblings at Versalles are eagerly readying for visitors from Westminster. A group of five Westminster members plan to travel in July to revisit the seven clean water installations Westminster currently sponsors [on the island] and to assess a potential new site, anticipating installation later this year. A highlight of the trip will be a chance to worship in person again at Versalles. A congregational trip is also being planned for early 2023 offering a unique experience to witness God’s love this whole world over.”

Conclusion[5]

Any discussion of Cuban religious freedom should expressly recognize its enormous economic problems associated with the worldwide COVID pandemic and the resulting severe negative economic impact on Cuba’s market for international tourism and hence Cuban opportunities for employment and entrepreneurial activities. These and other developments, including the continued U.S. embargo of the island, have caused increased numbers of Cuban seeking to flee the island and protests on the island over desperate conditions.

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[1] State Dep’t, 2021 Report on International Religious Freedom (June 2, 2022).

[2] Minneapolis’ Westminster Presbyterian Church’s Connections with Cuba, dwkcommentaries.com (Jan. 13, 2015}. See generally “Cuban Human Rights” section (with discussions of earlier U.S. reports on Cuban religious freedom) of  List of Posts to dwkcommentaries—Topical: CUBA [as of 5/4/20].

[3]   Daily Devotions of the Presbyterian Reformed Church of Cuba (June 26, 2022).

[4]  Our Global Partners in Cuba, Westminster News (July 2022). This blogger treasures his having been on three Westminster mission trips to Cuba and the friendships he has developed with Cubans. (Minneapolis’ Westminster Presbyterian Church’s Connections with Cuba, dwkcommentaries.com (Jan. 13, 2015); Minneapolis’ Westminster Presbyterian Church Celebrates U.S.-Cuba Reconciliation, dwkcommentaries.com (Jan. 4, 2015). See generally List of Posts to dwkcommentaries—Topical: CUBA [as of 5/4/20].

[5] See, e.g., Frank, Cuba sees slow economic recovery at 4% in 2022—Official, Reuters (Dec. 12, 2021); Cubans arriving in record numbers along Mexico border, Wash. Post (April 7, 2022); Cuba economic crisis and political crackdown pushes many to immigrate, Al Jazeera YouTube (May 2022); Cuban Migrants Arrive to U.S. in Record Numbers, on Foot, Not by Boat, N.Y. Times (May 3, 2022); With the world distracted, Cuba cracks down on dissident artists, Wash. Post (June 27, 2022)..

 

 

Resetting State Criminal Trial Date for Kueng and Thao for Killing of George Floyd

On June 6, Hennepin County District Court Judge Peter Cahill, in a well-reasoned opinion, postponed the date for the criminal cases against J. Peter Kueng and Tao Thao  to January 5, 2023.[1]

On June 21, Judge Cahill heard arguments on two motions for changing the date for the start of the trial.

Prosecution’s Motion[2]

The prosecution’s one-page letter merely stated, “On behalf of the family of George Floyd, the state requests a speedy trial as provided in the Victim’s Rights Act, Minn. Stat. sec. 611A.033(a), and Minn. R. Crim. P. 11.09(b).”

Kueng’s Motion[3]

Kueng’s motion requested a continuance to a date after April 3, 2023. For background, his motion stated, “On June 17, 2022 the State entered a speedy trial demand. . . . The State’s demand for a speedy trial followed a teleconference . . . [on June 27] wherein the instant continuance request was discussed [and] Counsel for Mr. Thao has informed the Court that he has no objection to this continuance request.” In addition, “On March 9, 2022 and May 27, 2022 the Court conducted chambers conferences with the parties to discuss plea negotiations, trial scheduling and other matters. During each of those meetings Counsel for Mr. Kueng informed the Court and parties that he was unavailable for trial from January through March 2023. Counsel’s unavailability is due a scheduling conflict of a personal nature.”

The Court’s Decision[4]

After hearing from the attorneys, Judge Cahill apologized to Thomas Plunkett, the attorney for Kueng, that he had forgotten that the attorney previously had told the Judge that he had a personal commitment ‘etched in stone’ in January and that he’d rather give up his law license than miss it. Judge Cahill then announced that he was changing the date for commencement of the trial to October 24, 2022 although he was still weighing the need for publicity from the federal trial and former officer Thomas Lane’s May guilty plea to aiding and abetting manslaughter to die down.

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[1] State Criminal Trial for Thao and Kueng Postponed to January 2023, dwkcommentaries.com (June. 6, 2022); Walsh, State requests speedier start for state trial of ex-officers Thao and Kueng in George Floyd killing, StarTribune (June 20, 2022).

[2] Letter, Frank (Assist. Att. Gen.) to Judge Cahill, June 17, 2022).

[3] Defendant Kueng’s Notice and Motion for Continuance, State v. Kueng, Henn. Cty. Dist. Ct. File No. 27-CR-20-12953 (June 19, 2022).

[4] Olson, Judge agrees to move trial of two former Minneapolis officers to October in George Floyd’s death, StarTribune (June 21, 2022).

State Criminal Trial for Thao and Kueng Postponed to January 2023

On June 6, Hennepin County District Court Judge Peter Cahill granted motions byTou Thao and J. Alexander Kueng to postpone their criminal trials with a new date of January 5 for their commencement. The court also denied the defendants’ motion to change venue and the motion of the Media Coalition to reconsider the court’s previous barring of audio and video coverage of this trial.[1]

The Reasons for Changing the Trial Date

 The Minnesota Supreme Court has recognized that “continuance of a trial date has been recognized as an effective tool to diminish the effect of prejudicial pretrial publicity.” Here, the defendants have cited two such events.

  • First, on May 18, 2022 (less than four week prior to the scheduled start of the trial co-defendant Thomas Lane pled guilty to aiding and abetting second-degree manslaughter. [2]
  • Second, on February 24, 2022, Thao, Kueng and Lane were found guilty by a federal jury of violating George Floyd’s civil rights “based largely on the same evidence as will be introduced in Defendants Thao’s and Kueng’s joint state trial.”[3]

“These two recent events and the publicity surrounding them are significant in they . . could make it difficult for jurors to presume Thao and Kueng innocent of the State charges.” A postponement of the trial for nearly seven months should “diminish the impact of this publicity on the Defendants’ right and ability to receive a fair trial from an impartial and unbiased jury.”

The Reasons for Denial of Change of Venue

Although there has been “saturation news coverage in the Twin Cities in print and broadcast media” of the George Floyd killing and subsequent court proceedings, the same is true “throughout the entire State of Minnesota—not to mention nationally.”

Moreover, “a prospective juror’s exposure to pretrial publicity does not alone create a reasonable likelihood of an unfair trial. . . . Instead, the issue is whether a prospective juror can set aside his or her impressions or opinions based on pretrial publicity, be fair and impartial, and render an impartial verdict.” In addition, this court has taken extensive measures in the earlier Chauvin trial and is now implementing those same measures for the trial of Thao and Kueng.

In addition, postponing the trial to January 2023 will put more than two and one-half years since the killing of Mr. Floyd; more than 20 months since the jury verdict in the Chauvin case; [4] almost eleven months since the jury verdict against Thao and Kueng in the federal civil rights trial; and probably four to six months since their upcoming sentencing in that federal trial.

Finally, this court has continued to impose “appropriate steps to ensure the selection of an impartial jury” and Hennepin County is “the most populous and diverse county in the state.”

The Reasons for Denial of Audio/Video Coverage

“With the reduction in the number of defendants, . . . [the trial courtroom] can now be configured, with the relaxed COVID protocols, to accommodate at least eighteen seats for the public . . . [which] does not amount to a courtroom closure.”

However, “if there is a significant rule change in place by [the commencement of this trial next January], the court would reconsider allowing audio and video coverage.”

Another Consideration

Another consideration favoring the postponement of the trial not mentioned by Judge Cahill was providing additional time for these two defendants, especially after their federal sentencing, to consider attempting to negotiate an agreement with the prosecution for their pleading guilty to the state charges.

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[1] Walsh, State Trial for fired Minneapolis officers Thao, Kueng delayed until January, Star Tribune (June 6, 2022); Order and Memorandum Opinion Concerning Trial, State v. Thao & Kueng, Court Files Nos. 27-CR-20-12949 & 27-Cr-20-12953, Hennepin County District Court (June 6, 2022).

[2] Ex-Officer Thomas Lane Pleads Guilty to State Charge of Aiding and Abetting Manslaughter of George Floyd, dwkcommentaries.com (May 18, 2022). Comment: More Details on Lane’s Guilty Plea, dwkcommentaries.com (May 19, 2022).

[3]  Federal Criminal Trial for Killing George Floyd: Jury Deliberations and Verdict, dwkcommentaries.com (Feb. 25, 2022).

[4] Derek Chauvin Trial: Week Seven (Conviction), dwkcommentaries.com (April 21, 2021); Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment, dwkcommentaries.com (June 28, 2021).

 

Derek Chauvin and City of Minneapolis Sued for Alleged Use of Excessive Force in 2017

On May 31, 2022, Derek Chauvin, the City of Minneapolis and certain other Minneapolis police officers were sued in two federal court cases for compensatory and punitive damages for Chauvin’s alleged use of excessive force in 2017.

John Pope Case[1]

In September 2017, John Pope, then 14 years old, alleges that he was alone in his bedroom on the floor using his cellphone when two Minneapolis police officers came into his room and said he was under arrest. When Pope asked why, one of the officers hit him on the head with a flashlight and choked him until he passed out. When he woke up, one of the officers had his knee on the back of Pope’s neck, and Pope asked the officer to move his knee to Pope’s lower back to help him breathe. The officer responded, “Are you going to flounce around,” before he moved his knee. At the time, Pope did not know the name of the officer, but after seeing photos of Chauvin after the killing of George Floyd, Pope believed that Chauvin was the officer in the encounter.

Thereafter Pope, now a soft-spoken bank supervisor and college student studying criminal justice, retained attorneys who investigated the case and with the aid of body-worn camera footage determined the following:

  • “That night Chauvin was acting as a field-training officer for officer Alexander Walls when the two responded to a domestic assault call at 8:45 p.m. to Pope’s home on the 5700 block of Chicago Avenue S. Pope was there with his sister and his mother, Deanna Jenkins.”
  • “Upon arrival, the officers called in a ‘Code 4,’ meaning the situation was under control and no assistance was needed. But Jenkins, who was obviously drunk, the lawsuit said, told Chauvin and Walls she wanted Pope and his sister arrested for using electricity to charge their phones.”
  • Jenkins “claimed Pope had grabbed her from behind, and with Chauvin watching, she filled out domestic assault paperwork.” The officers then went to talk to Pope in his bedroom, according to the lawsuit.
  • “The lawsuit said Chauvin held him down for 15 minutes while Pope was ‘completely subdued and not resisting,’ but crying out that he couldn’t breathe. Citing body-camera footage, the lawsuit said Jenkins asked Chauvin eight times to get off of Pope.”
  • “At least eight officers, including Walls and five others named in the lawsuit, saw Chauvin kneeling on an unmoving Pope but did nothing to stop the restraint. Chauvin was still on Pope when paramedics showed up, the lawsuit said.”
  • “Pope was taken to the hospital for stitches and then the Juvenile Justice Center where he was charged with fifth-degree domestic assault, a misdemeanor, and obstructing the legal process, a gross misdemeanor, but the charges were quickly dropped.”

In addition, the lawsuit alleges that the “kneeing maneuver” Chauvin used on Pope, Floyd and “likely many others” was Chauvin’s “calling card” despite officers knowing it posed serious risk of injury and death from positional asphyxia and that the MPD culture “encourages and enables racist, predatory police officers and unconstitutional force practices.”

Moreover, according to the lawsuit, “Chauvin’s treatment of Pope and [Zoya] Code [the plaintiff in the other new case] was available to MPD supervisors because the city maintains electronic storage of all body-worn camera footage through evidence.com. ‘But the city buried its head in the sand regarding such evidence or even worse, reviewed it and did nothing, in either case continuing to condone such actions by officers.’”

As a result, says the lawsuit, “Chauvin and six other officers violated . . . [Pope’s] constitutional right to be free from excessive force” and “that rather than discipline Chauvin for his treatment of Pope, the officer was “‘left free to prowl for more Black persons to subjugate and torture.’”

More specifically, the Complaint asserts the following claims:

  • Count I: Fourth and Fourteenth Amendment Violations against Chauvin individually for compensatory and punitive damages plus costs, including reasonable attorneys’ fees.
  • Count II: Race Discrimination—Fourteenth Amendment Violation against Chauvin individually for compensatory and punitive damages plus costs, including reasonable attorneys’ fees.
  • Count III: Fourth and Fourteenth Amendment Violations against six other officers individually for compensatory and punitive damages plus costs, including reasonable attorneys’ fees.
  • Count IV: Civil Rights Violations (Monell v. Dept. of Social Services) against the City of Minneapolis for compensatory damages plus costs, including reasonable attorneys’ fees.
  • Count V: Violation of Title VI of the Civil Rights Act of 1964 against the City of Minneapolis for compensatory damages plus costs, including reasonable attorneys’ fees.

Zoya Code Case[2]

Code, a 39-year-old mother of five alleges that in 2017 Chauvin held his knee on her back and traumatized her. She said, “I didn’t know his name. All I knew was he was a police officer with Minneapolis Police Department. I didn’t know what precinct he was at. All I knew was his face. [Chauvin] haunted me until I seen him on top of George [Floyd].” The legal bases for the five counts of this Complaint and the claimed relief are the same as the Complaint by Mr. Pope, except the latter’s Count III is only against one other officer.

Plaintiffs’ Attorneys

Mr. Pope and Ms. Code are represented by the prestigious Minneapolis law firm of Robins Kaplan LLP and three of its partners (Robert Bennett, Andrew Noel and Kathryn Bennett) along with Counsel Marc E. Betinsky and Associate Greta Wiessner.

The skills of these attorneys are demonstrated by the obviously well researched and written complaints. They are ready for battle if that is needed.

City of Minneapolis’ Reactions

In a statement, Minneapolis City Attorney Peter Ginder called the accounts of Pope and Code “disturbing. “We intend to move forward in negotiations with the Plaintiffs on these two matters and hope we can reach a reasonable settlement. If a settlement cannot be reached on one or both lawsuits, the disputes will have to be resolved through the normal course of litigation.”

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[1]  Complaint, Pope v. Chauvin, U.S. Dist. Ct., D. MN, No.0:22-cv-01434 (May 31, 2022); Olson & Robiou, Chauvin, Minneapolis police named in two federal excessive-force lawsuits dating to 2017, involving teenager, woman, StarTribune (May 31, 2022); Vancleave, [Videotape]: Minneapolis teen recalls violent arrest by Derek Chauvin years before George Floyd, StarTribune (May 31, 2022).

[2]   Complaint, Code v.  Chauvin, U.S. Dist. Ct., D. MN, No. 0:22-cv-01438 (May 31, 2022); Olson & Robiou, Chauvin, Minneapolis police named in two federal excessive-force lawsuits dating to 2017, involving teenager, woman, StarTribune (May 31, 2022).