Derek Chauvin Has Attorney for Appeal 

On October 15, William F. Mohrman, a Minneapolis attorney, filed a notice in the Minnesota Court of Appeals that he shall appear as counsel of record for Chauvin.[1]

Mohrman is a partner in the Minneapolis law firm of Mohrman, Kaardal & Erickson, P.A. and previously was an associate attorney with the Minneapolis office of Faegre & Benson and a trial attorney with the Minneapolis law firm of Felharber Larson Fenlon & Vogt. He also has served as an Adjunct Professor at the University of St. Thomas School of Law in Minneapolis and was awarded “Attorney of the Year” by the Minnesota Lawyer publication. [2]

Mohrman has a J.D. degree with an Order of the Coif for academic excellence from the University of Colorado Law School and an undergraduate degree, cum laude, from the University of Colorado and bar admissions in the state and federal courts in that state and Minnesota  as well as the federal court for the Eastern District of Wisconsin, the U.S. Court of Federal Claims, the U.S. Court of Appeals for the Eighth Circuit and the U.S. Supreme Court.

Now Mohrman will be remedying Chauvin’s various failures to abide by rules regarding his appeal. [3]

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[1]  [Notice of Appearance], State v. Chauvin, Minnesota Court of Appeals # A21-1218 (Oct. 15, 2021).

[2]  Mohrman, Kaardal & Erickson, P.A. 

[3]  Minnesota Supreme Court Denies Chauvin’s Request for Public Defender, dwkcommentaries.com (Oct. 8, 2021); Derek Chauvin Faces Roadblocks in Appealing His Conviction and Sentencing for Second-Degree Murder of George Floyd, dwkcommentaries.com (Oct. 9, 2021).

Derek Chauvin Faces Roadblocks in Appealing His Conviction and Sentencing for Second-Degree Murder of George Floyd

Derek Chauvin is facing roadblocks to appealing his conviction and sentencing for second-degree murder of George Floyd that was commenced on September 20 with Chauvin’s notice of appeal, statement of the case, motion to proceed in forma pauperis (IPF) in the Minnesota Court of Appeals and motion to stay this appeal pending the Minnesota Supreme Court’s review of his ineligibility determination for a public defender by the Office of the Minnesota Appellate Public Defender (OMAPD).[1]

The first roadblock occurred on September 24 when the clerk of the appellate courts directed Chauvin within 10 days to (1) pay the $550 filing fee; (2) provide proof of service of the notice of appeal on the district court administrator; and (3) provide proof of service of the appeal papers on the county attorney and attorney general.

The second roadblock was the Minnesota Supreme Court’s October 6th rejection of Chauvin’s appeal from OMAPD’s determination of his ineligibility for a Public Defender in this appeal.  [2] (The Court of Appeals in an  October 8th Order stated his request for the same relief was moot.)

That Court of Appeals’ Order also noted that Chauvin must submit a written request of transcripts within 30 days after the filing of the notice of appeal and that his appellate brief must be submitted within 60 days after the court reporter delivers the transcript.

That Court of Appeals’ Order further noted that because he was not represented by counsel, its rules provided that “the case will be submitted on the briefs and record without oral arguments by any party.” If, however, Chauvin subsequently obtains counsel, he may file a motion requesting oral argument.

These details were incorporated in the Court of Appeals’ Order as follows:

  1. On or before October 15 Chauvin “shall file proof of service of the notice of appeal on the Hennepin County District Court Administrator and proof of service of the notice of appeal and statement of the case on the Minnesota Attorney General.”
  2. Chauvin’s “motion to proceed IFP in this court is denied.”
  3. Chauvin’s “motion to stay this appeal is denied.”
  4. “On or before October 22, 2021, [Chauvin] shall pay the $550 filing fee.”
  5. “On or before October 22, 2021, [Chauvin] shall order a transcript of the district court proceedings from the court reporter and make financial arrangements for the court reporter to file a completed transcript certificate by November 12, 2021.”
  6. Chauvin’s “request for oral argument is denied without prejudice to a subsequent motion for oral argument filed by counsel.”

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[1] Olson, Appeals Court: Derek Chauvin can’t make oral arguments unless he hires a lawyer, StarTribune (Oct. 8, 2021); Order, State v. Chauvin, Minn. Ct. App. #A21-1228 (Oct. 8, 2021).

[2] Minnesota Supreme Court Denies Chauvin’s Request for Public Defender, dwkcommentaries (Oct. 8, 2021).

Minnesota Supreme Court Denies Chauvin Request for Public Defender     

On October 6, 2021, the Minnesota Supreme Court denied Derek Chauvin’s request for appointment of a public defender for his appeal of his conviction and sentencing for second-degree murder of George Floyd.[1]

Chauvin’s request apparently was made on September 23, when he stated the following to the Office of the Minnesota Appellate Public Defender (OMAPD):

  • “Due to my incarceration, I do not have the sufficient means to retain private counsel for the appeal.”
  • “I currently have no source of income, besides nominal prison wages, nor do I own any real property or vehicles. I am currently unmarried and have no dependents.”
  • “My only assets are two retirement accounts. I would face a significant penalty for early access to these retirement funds.”
  • “The district court case for which I intend to appeal was paid for by the Minneapolis Peace and Police Officer’s Association, and I have been informed that their obligation to pay for my representation terminated upon my conviction and sentencing,”

The OMAPD denied this request and the Supreme Court’s Order in effect affirmed the OMAPD’s conclusion  that Chauvin had not established that “through any combination of liquid assets and current income [he] would be unable to pay the reasonable costs charged by private counsel” for prosecution of this appeal. (Minn. Stat. sec. 611.17(a)(2).)

As the Court stated, “Having reviewed Chauvin’s request, the information provided regarding his assets and debts, and the OMAPD’s determination, we conclude that Chauvin has not established that he is entitled to appointed representation at this time.” (Unfortunately, this blogger was unable to obtain a copy of the OMAPD determination.)

However, the Supreme Court added that this denial “is without prejudice to a future application for such an appointment.”

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[1]  AP, Minnesota court denies Chauvin’s request for public defender, Wash. Post (Oct. 6, 2021); Olson, Supreme Court denies Chauvin’s request for a public defender for appeals in Floyd murder, StarTribune (Oct. 6, 2021); Sarnoff, Derek Chauvin Appeal: Minnesota State Supreme Court Upholds Denial of Request for Public Defender, Law & Crime (Oct. 6, 2021); Order, In re Application of Derek Chauvin for relief from the Ineligibility Determination of the State Public Defender, Minn. Sup. Ct. # ADM08-8001 (Oct. 6, 2021). See generally List of Posts to dwkcommentaries—Topical: George Floyd Killing.

 

 

 

 

Derek Chauvin Appeals His Conviction and Sentencing for Second-Degree Murder of George Floyd         

On September 23, 2021, Derek Chauvin initiated his appeal to the Minnesota Court of Appeals from the Hennepin County District Court ‘s June 25th Sentencing Order and Memorandum Opinion holding him guilty of second-degree murder of George Floyd and sentencing Chauvin to 22.5 years imprisonment for that crime.[1]

The document initiating this appeal was Chauvin’s Statement of the Case of Appellant.[2] It stated the following issues for the appeal:

“(1) The District Court abused its discretion when it denied Appellant’s motion for change of venue or a new trial;

(2) The District Court abused its discretion when it denied Appellant’s motion for a continuance or a new trial;

(3) The District Court abused its discretion when it denied Appellant’s motions to sequester the jury throughout trial;

(4) The State committed prejudicial prosecutorial misconduct;

(5) The District Court prejudicially erred when it concluded that the testimony of Morries Hall, or in the alternative Mr. Hall’s statements to law enforcement, did not fall under Minn. R. Evid. 804(b)(3) and was not a violation Appellant’s constitutional confrontation rights;

(6) The District Court prejudicially erred when it permitted the State to present cumulative evidence with respect to use of force;

(7) The District Court abused its discretion when it ordered the State to lead witnesses on direct examination;

(8) The District Court abused its discretion when it failed to make an official record of the numerous sidebar conferences that occurred during trials;

(9) The District Court abused its discretion when it failed to allow Appellant to exercise several cause strikes for clearly biased jurors during voir dire;

(10) The District Court abused its discretion when it permitted the State of amend its complaint to add the charge of third-degree murder;

(11) The District Court abused its discretion when it strictly limited and undercut the admissibility of George Floyd’s May 6, 2019 arrest;

(12) The District Court abused its discretion when it submitted instructions to the jury that materially misstated the law;

(13) The District Court abused its discretion when it by denying Appellant’s motion for a Schwartz hearing;

(l4) The District Court abused its discretion when it denied Appellant’s post-verdict motion for a new trial due to juror misconduct.”

These issues will be presented and argued with citations to legal precedents and the trial record in the subsequent briefs and oral arguments of the parties.

However, a practical problem for Chauvin is the inability of his trial counsel, Eric Nelson, to represent him on this appeal because the Minnesota Police and Peace Officers Association, which had paid Nelson’s attorneys’ fees for Chauvin’s pretrial and trial proceedings, does not pay such fees for appeals after conviction and Chauvin does not have the financial ability to pay for appellate counsel. As a result, on September 23, District Judge Peter Cahill entered an Order Granting In Forma Paupereris Application of Mr. Chauvin. Now Chauvin awaits the Minnesota Supreme Court’s action on his application to reverse its earlier decision denying him a public defender to represent him on this appeal.

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[1] Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment, dwkcommentaries.com (June 28, 2021); Forlitti (AP), Chauvin to appeal conviction, sentence in Floyd’s death, Wash. Post (Sept. 23, 2021); Chhith, Derek Chauvin appeals his conviction in George Floyd’s death, StarTribune (Sept. 23, 2021).

[2] Statement of the Case of Appellant, State v. Chauvin, Minnesota Court of Appeals Case No. A21-1228 (Sept. 23, 2021).

Criminal Cases Over George Floyd Killing: Recent Developments  

As mentioned in previous posts, former Minneapolis police officer Derek Chauvin was charged, tried, convicted and sentenced in Minnesota state trial court for the May 2020 killing of George Floyd[1] and he has been criminally charged in Minnesota federal court for that same killing.[2] The other three former police officers who were so involved (Thomas Lane, J. Alexander Kueng and Tou Thao) also face state and federal criminal charges with their state trial scheduled for March 2022 while their request for prohibition of video or audio coverage of the trial is still pending.[3]

There have been recent developments in these cases.

Minnesota Supreme Court OverturnsThird-Degree Murder Conviction of Mohammed Noor.[4]

Former Minneapolis police Officer Mohammed Noor, after trial in state court, was convicted of third-degree murder and second-degree manslaughter for the July 15, 2017, killing of Justine Ruszczyk Damond, and on September 15, 2021, the Minnesota Supreme Court unanimously reversed the third-degree murder conviction and remanded the case for re-sentencing on the manslaughter charge.

The Supreme Court held that the third-degree murder statute required a “depraved mind” or a “generalized indifference to human life”  and that  requirement cannot be satisfied when a defendant’s conduct is aimed at a single person, as was the case with Noor.

Upon remand to the trial court, Noor will be re-sentenced for his conviction for second-degree manslaughter, which is expected to be four years, which given his imprisonment so far for 28 ½ months means he could be eligible for supervised release in 3.5 months.

This decision raises the question of whether it will affect Chauvin’s sentence of 22 ½ years for the second-degree murder of George Floyd. Although the jury also had found Chauvin guilty for third-degree murder and second-degree manslaughter, the 22 ½ year sentence was only based on conviction for second-degree murder.[5] Therefore, the Noor decision does not directly impact Chauvin’s sentence. Perhaps Chauvin’s attorney will argue on appeal that the third-degree murder charge against Chauvin unfairly impacted the entire case against him and thus calls for complete reversal by the appellate court, but Susan Gaertner, former Ramsey County Attorney, thinks that is highly unlikely. This blogger, a retired attorney without criminal law experience, concurs in that reaction.

Chauvin and the Other Three Defendants Plead to Federal Criminal Charges.[6]

In May 2021, Chauvin and the three other officers were criminally charged in federal court with allegedly using the “color of the law” to deprive Mr. Floyd of his constitutional rights to be “free from the use of unreasonable force” in his May 2020 arrest, and on September 14, 2021, all four entered not guilty pleas in federal court.

The pending motions of the other three officers to be tried separately from Chauvin have not yet been acted upon.

On September 16, Chauvin was arraigned on a separate charge in federal court for alleged use of excessive force in the September 2017 arrest of a 14-year-old boy, and Chauvin entered a not guilty plea to this charge.

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[1] 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).

[2] Federal Criminal Charges Against Ex-Minneapolis Policemen Over George Floyd Killing, dwkcommentaries.com (May 7, 2021); Federal Criminal Cases Against Ex-Minneapolis Cops for George Floyd Death: Initial Proceedings, dwkcommentaries.com (June 2, 2021).

[3]  Defendant’s Motion To Exclude Video and Audio Recording of Proceedings, State v. J. Alexander Kueng, Thomas K. Lane, District Court , Court File NO.: 27-CR-20-12953 & 27-CR-20-12931 (Aug. 25, 2021); State’s Memorandum of Law Opposing Motions To Exclude Audio and Video Recording of Proceedings, District Court File NO.: 27-CR-20-12953 & 27-CR-20-12931 & 27-CR-20-12949 (Sept. 1, 2021).

[4] Minnesota Supreme Court Hears Argument About Scope of Third- Degree Murder Statute, dwkcommentaries.com (June 10, 2021); Xiong & Olson, Supreme Court overturns third-degree murder conviction against ex-Minneapolis police officer Mohammed Noor, StarTribune (Sept. 16, 2021); State v. Noor, Opinion, No. A19-1089 (Minn. Sup. Ct. Sept. 15, 2021).

[5] See. n.1.

[6]  Mannix, Four former Minneapolis officers plead not guilty to federal civil rights charges, StarTribune (Sept. 14, 2001); Olson, Chauvin enters not guilty plea to federal civil rights charge involving a 14-year-old, StarTribune (Sept. 16, 2021); Federal Criminal Case Over George Floyd Killing: Request To Sever Chauvin Case from Three Co-Defendants Cases, dwkcommentaries.com (Aug. 9, 2021).

 

Beautiful Performance of “Hallelujah” 

Early this morning, I woke up early and turned on my iPad to go to cnn.com and see if there was any important breaking news. I did not find any such item. But I noticed an entry entitled “Watch H.E.R. perform ‘Hallelujah.’” Although I had no idea of who H.E.R. was, I did open this link  because I have listened to this song many times and always have  found it very moving.

I am glad I did because it was an astonishingly beautiful performance. A little Internet research told me that “H.E.R.“ (“Having Everything Revealed”) since 2016 is the stage name for the 24-year-old Gabriella Sarmiento Wilson, who was born in Vallejo, California to a Filipina mother and African-American father. She has produced many records of contemporary R&B music and has received many awards, including NAACP Image, BET and Net Honors this year so far. [1]

This performance appeared on a September 11 CNN television special, “Shine a Light,” hosted by Jake Tapper that paid tribute to the nearly 3,000 people who were killed in the 9/11 attacks and featured discussions with young adults who were affected by that attack and its aftermath and other musical performances by Brad Paisley, Common, and Maroon 5 as well as appearances by Robert DeNiro, Leonardo DiCaprio and Eli Manning. [2]

When I listened to H.E.R. sing “Hallelujah” I remembered that it was composed by Leonard Cohen, a Canadian composer and musician and research prompted by H.E.R.’s performance has revealed that Cohen was born on September 21, 1934 and died on November 7, 2016 and was also a poet and novelist. He was inducted into the Canadian Music Hall of Fame, Canadian Songwriters Hall of  Fame and the Rock and Roll Hall of Fame and invested as a  Companion of the Order of Canada, the nation’s highest civilian honor.

Cohen’s Lithuanian-born mother was the daughter of a Talmudic writer and his paternal grandfather was the founding president of the Canadian Jewish Congress. His family observed Orthodox Judaism and he was described as a Sabbath-observant Jew. He also said, “I’m very fond of Jesus Christ. He may be the most beautiful guy who walked the face of this earth. Any guy who says ‘Blessed are the poor. Blessed are the meek’ has got to be a figure of unparalleled generosity and insight and madness … A man who declared himself to stand among the thieves, the prostitutes and the homeless. His position cannot be comprehended. It is an inhuman generosity. A generosity that would overthrow the world if it was embraced because nothing would weather that compassion. I’m not trying to alter the Jewish view of Jesus Christ. But to me, in spite of what I know about the history of legal Christianity, the figure of the man has touched me.” In addition, later in life Leonard was ordained a Zen Buddhist monk[3]

I, therefore, see this song by Cohen as a religious song expressing gratitude and adoration to God with resonance in  both Jewish and Christian and perhaps other religions.[4]

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[1] H.E.R., Wikipedia; H.E. R. Discography, Wikipedia; H.E.R.—official website.

[2] CNN will air 9/11 special “Shine A Light” tonight, cnn.com (Sept. 11, 2021).

[3] Leonard Cohen, Wikipedia; Leonard Cohen, Hallelujah, leonardcohen.com.

[4] Hallelujah, Wikipedia; Wood, What did Leonard Cohen really mean when he sang ‘Hallelujah’?, L.A. Times (Nov. 11, 2016); Kemp, “Hallelujah: Leonard Cohen, A Journey, A Song” Review: Wide-Reaching Doc Struggles to Chronicle an Icon, IndieWire (Sept. 2, 2021.

U.S. Resettlement of Refugees and Recent Afghan Evacuees

The U.S. currently is engaged in resettling in this country refugees from around the world under previously established international refugee resettlement processes as well as recent Afghan evacuees under newly modified processes for Afghans.

Here is a summary of the legal requirements and administrative procedures for these important developments.

U.S. Resettlement of Refugees

  1. International Legal Protection of Refuges[1]

In 1951 an international conference of diplomats adopted an international treaty to protect refugees (Convention Relating to the Status of Refugees).

This treaty went into effect or force in April 1954 after its ratification by six states. However, the U.S. did not directly ratify this treaty, but did so indirectly in 1968 when under the leadership of President Lyndon Johnson the U.S. ratified a treaty amendment (Protocol Relating to the Status of Refugees).

The U.S., however, did not adopt implementing legislation until 1980, when President Jimmy Carter led the adoption of the U.S. Refugee Act of 1980, which included the treaty’s following definition of “refugee” (with U.S. express addition for “past” persecution):

  • “ (A)ny person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of [past] persecution or a well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.. . . ”

As of January 20, 2020, there were 146 parties to the Convention and 147 to the Protocol.

  1. International Resettlement of Refugees[2]

After international cooperation on resettlement of specific groups of refugees, 1956-1995, the United Nations High Commissioner for Refugees (UNHCR) in 1995 organized the Annual Tripartite Consultations on Resettlement for the UNHCR, nation states and civil society. By the end of 2019, these consultations had established a global resettlement policy and procedures to attempt to provide locations for such resettlement that can provide the services that refugees need. These procedures have resulted in resettlement of over 1 million refugees: 90 percent of whom came from Myanmar, Syrian Arab Republic, Iraq, Democratic Republic of Congo and Somalia and were resettled in the U.S., Canada, Australia, Sweden and the United Kingdom.

At the end of 2019, the UNHCR estimated there were 26 million refugees in the world, about one half of whom are under the age of 18. This group is part of the 79.5 million forcibly displaced people in the world (the other 53.5 million are forcibly displaced within their own countries and thus not entitled to refugee status).

  1. U.S. Resettlement of Refugees[3]

The U.S. has participated in this international resettlement program under the overall direction of the Departments of State and Homeland Security.

Under U.S. law the U.S. President establishes annual quotas for such resettlements. The largest such quota was 200,000 in 1980 when President Carter led the U.S. adoption of the Refugee Act of 1980. In 1999 under President Clinton the quota was 132,631, and in 2016 under President Obama it was 84,994.

For Fiscal 2019 President Trump reduced the number of refugees for resettlement in U.S. to 15,000 and required cities and counties to file written affirmative consents for such resettlements with the State Department, but a federal court held that requirement was illegal. Nevertheless, many states, including Minnesota, granted such consents along with statements about the many contributions by refugees to their states.

President Biden initially said he would maintain the 15,000 quota set by Trump for this fiscal year, but after strong objections by influential Senators and others, the White House on May 3, 2021, stated the it was revising the quota to 62,500 for this fiscal year although it was unlikely that it would meet that number by that year’s end on 9/30/21. President Biden also said that he intends to increase the quota for the next fiscal year to 125,000.

  1. Refugee Resettlement in Minnesota [4]

From 2005 through 2019 the State of Minnesota had resettled 33,189 refugees. The largest numbers came from Somalia (13,674), Burma (8,604), Ethiopia (2,194), Laos (2,042), Iraq (1,290), Bhutan (1,188) and Liberia (1,171).

For Fiscal 2021 (ending 9/30/21), Minnesota had a resettlement goal of 500, but as of 5/12/21 had received only 30. They came from the Democratic Republic of Congo, Ethiopia, Somalia, Ukraine and Republic of Moldova (Eastern European county and former part of USSR). Because of COVID-19, the goal of 500 probably will not be met.

For Fiscal 2022 (before the evacuation of Afghans), Minnesota expected to have a resettlement goal of 1,900 given President Biden’s stated intent to increase the national total to 125,000.

Such resettlements are coordinated by refugee resettlement agencies in the State: Minnesota Council of Churches (Refugee Services), International Institute of Minnesota, Lutheran Social Services of Minnesota, Catholic Charities of Southern Minnesota and Arrive Ministries.

Minneapolis’ Westminster Presbyterian Church, where this blogger is a member, is launching its Refugee Co-Sponsorship Team of six to twelve individuals under the leadership of three “champions” with guidance of the Minnesota Council of Churches and anticipates receiving its first refugee family this October.

Our Team’s commitment is for four to six months starting with setting up an apartment selected by the Council with furnishings that it and our Team provides; welcoming the family on their arrival at the Minneapolis-St. Paul Airport and transporting them to their apartment;  helping the family’s orientation to their new neighborhood, city and services; transporting them to various meetings and shopping; assisting school registration for any children and adult ESL enrollment; providing information about various public services and obligations; and helping them find employment. In short, being friends to our new residents. The co-sponsorship ends with a closing ceremony, transitioning the relationship to mutual friendship, rather than a continued helping relationship. [5]

U.S. Resettlement of Recent Afghan Evacuees.

The recent turmoil in Afghanistan has resulted  in the U.S. evacuation from that country of approximately 130,000 people (124,000 Afghans and 6,000 U.S. citizens).

Many of the Afghan allies with U.S. special immigrant visa applications and their families who recently escaped Afghanistan were flown from Kabul to Washington, D.C. for their subsequent transfer to U.S. forts in Virginia (Fort Lee),Texas (Fort Bliss) and western Wisconsin (Fort McCoy, which is about 169 miles southeast of Minneapolis). Others were flown to U.S. military bases in other countries for processing and hoped-for transfers to the U.S.[6]

This summary is based upon the cited sources with recognition that this is a very complex and changing situation and readers’ corrections and amplifications are most welcome.

  1. Legal Status of Afghan Evacuees[7]

Most, if not all, of these Afghans have not been through the previously described procedures for resettlement of refugees and have not been determined to meet the requirements for refugee status. (Some articles erroneously refer to them as “Afghan refugees.”)

Instead, they are being vetted by U.S. agencies for meeting the following requirements for Afghan Special Immigrant Visas (“SIVs”):

  • employment in Afghanistan for at least one year between October 7, 2001, and December 31, 2023, by or on behalf of the U.S. government or by the International Security Assistance Force (ISAF), or a successor mission in a capacity that required the applicant to serve as an interpreter or translator for U.S. military personnel while traveling off-base with U.S. military personnel stationed at ISAF or to perform activities for U.S. military personnel stationed at ISAF; and
  • Have experienced or be experiencing an ongoing threat as a consequence of their employment.

Alternatively some Afghans might be eligible for Priority 2 (P-2) designation granting U.S. Refugee Admissions Program access for Afghans and their eligible family members by satisfying one of the following conditions:

  • “Afghans who do not meet the minimum time-in-service for a SIV but who work or worked as employees of contractors, locally-employed staff, interpreters/translators for the U.S. government, U.S. Forces Afghanistan (USFOXRX-A), International Security Assistance Force (ISAF), or Resolute Support;”
  • “Afghans who work or worked for a U.S. government-funded program or project in Afghanistan supported through a U.S. government grant or cooperative agreement;” or
  • “Afghans who are or were employed in Afghistan by a U.S.-based media organization or non-governmental organization.”

Afghans also could be eligible for “the Priority (P-1) program by virtue of their circumstances and apparent need for resettlement who are referred to the P-1 program . . .  by the UN High Commissioner for Refugees (UNHCR), a U.S. embassy, or a designated NGO.”

However, an Associated Press reporter claims that “the majority will arrive without visas as ‘humanitarian parolees,’ lacking a path to legal U.S. residency and the benefits and services offered to traditional refugees, according to U.S. officials and worried aid groups working closely with the government.” Instead, “Afghan parolees who have arrived at U.S. military bases will be eligible for an ad hoc State Department program that provides limited assistance for up to 90 days, including a one-time $1,250 stipend. But they will not have the full range of medical, counseling and resettlement services available to immigrants who arrive through the U.S. refugee program.”

  1. U.S. Administrative Agencies Involved in “Operation Allies Welcome[8]

On August 19, 56 Senators sent a bipartisan letter to President Biden calling for “the urgent evacuation of Afghan Special Immigrant Visa (SIV) applicants and their families, as well as the full and immediate implementation of [the above legislation] to expand the Afghan SIV program and streamline the application process.”

That message was in accord with the Biden Administration’s desires. On August 29, President Biden directed the Department of Homeland Security to be the lead agency coordinating this resettlement effort and that agency’s Secretary (Alejandro N. Mayorkas) simultaneously appointed Robert J. Fenton, Jr. with 29 years of experience in FEMA large-scale response and recovery efforts to lead the interagency Unified Coordination Group in this effort. He will be working with Jack Markell, a former Delaware Governor and now the White House’s coordinator of “Operation Allies Welcome.”

  1. Resettlement of Afghan Evacuees in U.S. [9]

Operation Allies Welcome is asking the nonprofit organizations that have contracted with the U.S. State Department for resettlement of refugees to also handle the resettlement of the Afghan evacuees. This task is made much more difficult by last year’s shrinkage of these agencies caused by President Trump’s reduction of the quota for such resettlement to 15,000 and the associated reduction of federal financial support for same and by the size and unresolved issues about the Afghan evacuees.

  1. Societal Reactions to Afghan Resettlement [10]

There are general reports about positive reactions to such resettlement from U.S. citizens and organizations.

The State of Minnesota did so in an August 19, 2021, letter to President Biden from Minnesota Governor Tim Walz and Lieutenant Governor Peggy Flanagan. It stated that Minnesota “in the past . . . has stepped forward to help those who are fleeing desperate situations and need a safe place to call home” while acknowledging, “New Minnesotans strengthen our communities and contribute to the social fabric of our state. They are our neighbors.” Therefore, “we [in Minnesota] stand ready to work with you and your administration to welcome [Afghan] families as this effort to provide safety and refuge continues.”

Minnesota’s U.S. Senator Amy Klobuchar has voiced a similar opinion by offering her office’s assistance to American citizens and Afghan allies looking to evacuate that country and by signing a bipartisan letter to the President urging support for evacuation efforts.

In addition, Temple Israel of Minneapolis is embarking on a program to help some of these Afghans to resettle in Minnesota and has enlisted Westminster Presbyterian Church as a co-sponsor for such resettlements. The Temple’s program probably springs from the Hebrew Immigrant Aid Society (HIAS) as well as a continuous Jewish presence in the territory of Afghanistan from the 8th century CE until the 20th century.[11]

Conclusion[12]

Westminster’s involvement with immigrants is not new in our 160 years. Indeed, the church was established in 1857 by Scottish and Welsh newcomers on land that had been home to the Dakota people for many generations. In 1870 we established our first global mission partnership after our third pastor had visited China and in the 1880s began a formal ministry teaching English and providing support to Chinese immigrants that continued in the 20th century.

Our church also has partnerships with Protestant churches in Cuba, Cameroon and Palestine.

These Westminster ministries are inspired by various Biblical passages.

The book of Leviticus says, “When an alien resides with you in your land, you shall not oppress the alien. The alien who resides with you shall be to you as the citizen among you. You shall love the sojourner as yourself, for you were sojourners in the land of Egypt. I am the Lord your God.” (Leviticus 19: 33-34.) (The Hebrew word for “alien” is “ger,”which means stranger in the land, one who sojourns among you.)

Jesus, of course, told stories about heroes who are disliked foreigners, like the good Samaritan (Luke 10: 25-37) , or when He welcomes those whom others shun as outsiders, like the Samaritan woman at the well (John 4: 1-26) and when He ignores the then current mandate no to pay attention to people living with leprosy or other illnesses (Matthew 8: 1-3).  As our Pastor, Rev. Tim Hart-Andersen said in his recent sermon, “As Christians, our core conviction insists on hospitality to those deemed other by the world around us—and anyone else known to be the most vulnerable in the community.”

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[1] UNHCR, Convention and Protocol Relating to the Status of RefugeesRefugee Act of 1980; Convention Relating to the Status of Refugees, Wikipedia; List of Posts to dwkcommentaries—Topical: LAW (REFUGEE & Asylum).

[2]  UNHCR, The History of Resettlement (2019).

[3] U.S. State Dep’t, About Refugee AdmissionsU.S. State Governments Celebrate Refugee Accomplishments, dwkcommentaries.com (Feb. 2, 2020); U.S. State Dep’t, Report to Congress on Proposed Refugee Admissions for Fiscal Year 2021 (Oct. 22, 2020); U.S. Reduces Refugee Admissions to 15,000 for Fiscal 2021, dwkcommentaries.com (Oct.  2, 2020); U.S. State Dep’t, Report to Congress on the Proposed Emergency Presidential Determination on Refugee Admissions for Fiscal Year 2021 (Feb. 12, 2021); Joe Biden Raises Trump refugee cap  after backlash, BBC News (May 4, 2021);UNHCR, UNHCR applauds US decision to increase refugee resettlement (May 3, 2001). Minnesota Council of Churches, Refugee Services.

[5]  Minnesota Council of Churches, Refugee Services; Minnesota Council of Churches, Help Afghan Refugees (Aug. 30, 2021); Campbell, Schulze & Krohnke, Our Refugee Family Co-Sponsorship: An Invitation to Love the Sojourner Among Us, Westminster News (Sept. 2021).

[6] U.S. Defense Dep’t, U.S. Seeks to Open More Locations to Aid Evacuation From Kabul, General Says, DOD News (Aug. 21, 2021); Assoc. Press, Afghan refugees arrive, temporarily, in northern Virginia, Wash. Post (Aug. 22, 2021); Assoc. Press, Afghan refugees begin arriving at Fort McCoy in western Wisconsin, StarTribune (Aug. 23, 2021); Musa, The United States Needs an Afghan Refugee Resettlement Act, Foreign Policy (Aug. 19, 2021), ; Baghdassarian & Carney, Special Immigrant Visas for the United States’ Afghan Allies, Lessons Learned from Promises Kept and Broken, Lawfare (Aug. 19, 2021),

[7] State Dep’t, Special Immigrant Visas for Afghans—Who Were Employed by/on behalf of the U.S. Government; State Dep’t, U.S. Refugee Admissions Program Priority Designation 2 for Afghan Nationals (Aug. 2, 2021); Press Release, BREAKING: Senate Passes Shaheen-Ernst Bill to Protect Afghan Allies through SIV Program as Part of Supplemental Spending Bill (July 29, 2021); Emergency Security Supplemental Appropriations Act, 2021, Public Law 117-331, enacted on July 30, 2021; Assoc. Press, For Afghan evacuees arriving to U.S., a tenuous legal status and little financial support, Wash. Post (Sept. 1, 2021).

[8] Shaheen, Ernst Lead Bipartisan Effort Urging the Administration on Immediate Evacuation & Full Implementation of their SIV Legislation Aug. 19, 2021). Homeland Security Dep’t, DHS to Serve as Lead Federal Agency Coordinating Efforts to Resettle Vulnerable Afghans, (Aug. 29, 2021); Sacchetti, Miroff & Demirjian, Biden names former Delaware governor Jack Markell to serve as point person on Afghan resettlement in the United States, Wash. Post (Sept. 3, 2021).

[9] U.S. Refugee Organizations Race to Prepare for Influx of Afghans, W.S.J. (Aug. 31, 2021). Hackman, Afghan Refugees in the U.S.: How They’re Vetted, Where They Are going and How to Help, W.S.J. (Sept. 3, 2021). Assoc. Press, US faith groups unite to help Afghan refugees after war, StarTribune (Sept. 2, 2021).

[10] Office of Governor Walz & Lt. Governor Flanagan, Governor Walz and Lieutenant Governor Peggy Flanagan: Minnesota Stands ready to Welcome Afghan Refugee Families (Aug. 19, 2021); Assoc. Press, Walz extends Minnesota’s welcome mat to Afghan refugees (StarTribune (Aug. 20, 2021). News Release, Klobuchar Announces Office Assistance for Americans and Afghan Allies Evacuating Afghanistan (Aug. 18, 2021).

[11] HIAS Statement on Afghanistan Crisis (Aug. 16, 2021); History of the Jews in Afghanistan, Wikipedia; Oreck, Afghanistan Virtual Jewish History Tour, Jewish Virtual Library; The Jews of Afghanistan, Museum of the Jewish People.  Westminster’s Response to Crisis in Afghanistan (Aug. 8, 2021).

[12] Rev. Timothy Hart-Andersen & Rev. David Tsai Shinn, Sermon: Concerning the Sojourner (June 20, 2021). Westminster Presbyterian Church, Global Partners Ministry Team.

 

Federal Criminal Case Over George Floyd Killing: Requests To Sever Chauvin Case from Three Co-Defendants Case 

On April 20, 2021, the  first criminal trial over the killing of George Floyd resulted in a Minnesota state court jury verdict holding former Minneapolis police officer Derek Chauvin guilty on counts of second-degree murder, third-degree murder and second-degree manslaughter.  On June 25, 2021, Minnesota District Court Judge Peter Cahill sentenced Chauvin to 22.5 years imprisonment for these crimes. [1]

Since then the Minnesota state court has handled various issues relating to the Chauvin conviction and sentencing while also preparing for the criminal trial in March 2022 of the other three former Minneapolis police officers involved in the killing of Mr. Floyd (J. Alexander Kueng, Thomas Lane and Tou Thao).[2]

Federal Criminal Cases Over the Killing of George Floyd[3]

In the meantime, on May 6, 2021, the U.S. Department of Justice filed in the U.S. District Court in Minneapolis an indictment against Chauvin and these other three former Minneapolis police officers. These were the charges:

  • Count 1 charged Derek Chauvin, “while acting under color of law . . . willfully deprived George Floyd of the right, secured and protected by the Constitution and laws of the United States, to be free from an unreasonable seizure, which includes the right to be free from the use of unreasonable force by a police officer.”
  • Count 2 charged Tou Thao and J. Alexander Kueng, “acting under color of law, willfully deprived George Floyd of the right, secured by the Constitution and laws of the United States, to be free from an unreasonable seizure . . . [by failing] to intervene to stop . . . Chauvin’s use of unreasonable force.”
  • Count 3 charged all four defendants, “while acting under color of law, willfully deprived George Floyd of the right, secured and protected by the Constitution and laws of the United States, not to be deprived of liberty without due process of law, which includes an arrestee’s right to be free from a police officer’s deliberate indifference to his serious medical needs [when they saw ] George Floyd lying on the ground in clear need of medical care, and willfully failed to aid Floyd, thereby acting with deliberate indifference to a substantial risk of harm to Floyd.”

Also on May 6, 2021, the Department of Justice filed in the federal court in Minneapolis another indictment of Chauvin for alleged use of unreasonable force against a juvenile in 2017. But the other three former Minneapolis policemen were not involved in this case.

Motions To Sever the Federal Chauvin Case from That Case Against the Other Three Ex-Cops[4]

As of August 4, 2021, the docket sheet for the federal case over the killing of Mr. Floyd had 104 entries, almost all of which are preliminary matters not requiring comments here.

However, on August 3, defendants Thao, Kueng and Lane filed motions to sever their cases from the one against Chauvin, Thao’s motion had the following most extensive statement pf reasons for severance:

  1. The defendants were “not properly joined under Rule 8(b) of the Federal Rules of Criminal Procedure,” which allows charging “2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.”
  2. “The jury will have insurmountable difficulty distinguishing the alleged acts of each defendant from the alleged acts of his co-defendants.”
  3. ”Evidence may be introduced by each defendant which would be inadmissible against other defendants in a separate trial to the prejudice of these defendants.”
  4. “The counts of the indictment are not properly joined under Rule 8(a) of the Federal Rules of Criminal Procedure,which allows charging “a defendant in separate counts with 2 or more offenses if the offenses charged—whether felonies or misdemeanors or both—are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.”
  5. “Mr. Thao’s Fifth Amendment right to not incriminate himself will be prejudiced by the joinder of the counts.”
  6. “Evidence which would be inadmissible were the counts tried separately, may be admitted and considered by the jury to the prejudice of Mr. Thao.”
  7. “The jury will have insurmountable difficult distinguishing evidence presented on one count from that evidence presented on other counts, and will inevitably consider the evidence cumulatively.”
  8. “Mr. Thao will obtain a fair and more impartial Trial [if] he is tried separately from his co-defendants.”

As other filings however, make clear, the U.S. opposes the severance motions but agrees to abide by any order the Court may issue on these motions. However, “a decision on severance is pre-mature,” and all parties “jointly ask that [these] motions[s] be reserved until a point in the future when information relevant to severance of Mr. Chauvin becomes more developed.[5]

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

[2] Xiong, State trial postponed to March 2022 for ex-officers charged with aiding and abetting murder in George Floyd death, StarTribune (May 13, 2021);  Bailey, Trial for 3 former officers charged in George Floyd murder delayed until March, Wash. Post (May 13, 2021); Furber, Judge Delays Trial for Other Officers Charged in Killing of George Floyd, N.Y. Times (May 13, 2021).

[3] Federal Court Charges Against Ex-Minneapolis Policemen Over George Floyd’s Killing, dwkcommentaries.com (May 7, 2021); Federal Criminal Cases Against Ex-Minneapolis Copes for George Floyd Death: Initial Proceedings, dwkcommentaries.com (June 2, 2021).

[4] Forliti (AP), Ex-cops charged in Floyd death want separation from Chauvin, StarTribune (Aug. 3, (2021); Xiong, Former Minneapolis officers request separate federal trial from Derek Chauvin, StarTribune (Aug. 3, 2021); Motion for Severance. United Sates v. Thao, U.S. Dist. Ct., Dist. Minn. File No. 21-CR-108(2) (Aug. 3, 2021); Defendant’s Pretrial Motion for Severance of Derek Chauvin (Defendant 1), U.S. v. Kueng, U.S. Dist. Ct., Dist. Minn. File No. 21-CR-108(2) (Aug. 3, 2021); Motion To Join Co-Defendants Pretrial Motions, U.S. v. Lane, U.S. Dist. Ct., Dist. Minn. File No. 21-CR-108 (Aug. 3, 2021).

[5] Defendant’s Meet and Confer Notice, U.S. v. Kueng, U.S. Dist. Ct., Dist. Minn. File No. 21-CR-108(2) Aug. 3, 2021.See generally List of Posts to dwkcommentaries—Topical: George Floyd Killing.

Derek Chauvin Trial: Court Denies State’s Motion To Amend Sentencing Opinion          

“On July 7, 2021, the State of Minnesota made an unusual request of Hennepin County District Court Judge Peter Cahill: revise its June 25, 2021, Sentencing Memorandum Opinion regarding Derek Chauvin, but not its 22.5 year sentencing order for him. The requested change was to include the presence of children at the scene of George Floyd’s murder as an aggravating factor for sentencing.” (Emphasis added.)[1]

Only six days later, on July 13, Hennepin County District Court Judge Peter Cahill denied this request or motion.[2]

The Judge first noted that the State did “not cite any statues or rules it contends vest this Court with jurisdiction over this case “ at this juncture and did not request or expect any response from Chauvin. (Pp. 1-2.) In other words, there was no legal basis for the State’s request.

Judge Cahill then made the following criticisms of the merits of the State’s request:

  • It ignored the Court’s focus: Chauvin’s conduct toward George Floyd on May 25, 2020.
  • The Court did not find or write in the Sentencing Memorandum Opinion that the four minor eyewitnesses were not traumatized, rather it stated that the trial evidence did not present any objective indicia of trauma.” (Emphasis by Court.)
  • The State failed to exercise its right to a separate contested sentencing hearing on alleged aggravating factors.
  • The State gave lower priority and less attention to the presence of children in its arguments for aggravating factors for sentencing.
  • The Court was not intending “to send a message” of any kind in its sentencing.
  • The Court did not make its sentencing decision on the basis of the racial or ethnic status of any of the observers at the May 25, 2020 scene of the killing of Mr. Floyd or of the three young women and nine-year-old girl observers.
  • The State ignores the law that the court has to find “substantial and compelling reason” why an aggravating factor may call for an aggravated sentence, and cases so involving the presence of children are distinguishable.
  • The court, in accordance with the law, imposed a 22.5 year sentence on Chauvin that was “rational and just, . . helps to promote public safety, . . . reduces sentencing disparity, . . . and is proportional to the severity of the offense and the defendant’s criminal history.

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[1] Derek Chauvin Trial: State Requests Modification of Court’s Sentencing Memorandum, dwkcommentaries.com (July 8, 2021) (emphasis added). /

[2] Oder Denying State’s Request To Modify Sentencing Order Memorandum Opinion, State v. Chauvin, Hennepin County District Court, Court File No. 27-CR-20-12646 (July 13, 2021); Olson, Chauvin judge declines state request to revise memo about young eyewitnesses to Floyd murder, StarTribune (July 13, 2021).

 

Derek Chauvin Trial: State Requests Modification of Court’s Sentencing Opinion

On July 7, 2021, the State of Minnesota made an unusual request of Hennepin County District Court Judge Peter Cahill: revise its June 25, 2021, Sentencing Memorandum Opinion, but not its 22.5 year sentencing order. The requested change was to include the presence of children at the scene of George Floyd’s murder as an aggravating factor for sentencing.

Rationale for the Request[1]

 The State asserted the following two reasons for this request.

First, the Court said, contrary to laws and common sense,” that the children’s presence should not be an aggravating factor because they “were not forcibly held at the scene or otherwise prevented from leaving.”  However, according to the Attorney General, “The Minnesota Supreme Court has clearly stated that an aggravating factor applies when children witness criminal activity.[Emphasis in Ellison letter.]Children lack the adult capacity for decision-making, including the ability to maturely ‘walk away.’ Moreover, the law does not place the burden on a child to choose between staying—whether to stand witness or in an attempt to aid a victim—or leaving the scene of a crime. For good reason: The responsibility of shielding a child from witnessing a crime should not fall on the child. In other words, a child is akin to a victim when she perceives a horrific event—such as murder—without anything more.”

Moreover, the “State is deeply worried about the message sent by suggesting that instead of attempting to intervene in order to stop a crime—which children did in this case—children should simply walk away and ignore their moral compass. Children should never be put in this position.”

Second, “the State vehemently disagrees with the Court’s factual assertion that the demeanor the children exhibited in the video of  Mr. Floyd’s death indicates that the children were not traumatized. The children’s emotional testimony at trial—including that one of them stays awake at night and another cannot return to Cup Foods—belies that conclusion.”

Third, “the best social science research also supports modifying the opinion’s reliance on the children’s demeanor. . .. [It] ignored the facts that the children courageously confronted Mr. Chauvin and his codefendants –by pleading repeatedly for Mr. Chauvin to remove his knee from Mr. Floyd’s neck so that he could breathe, and by begging Mr. Chauvin and his codefendants to check Mr. Floyd’s pulse [and instead] relied on its observation that the children smiled or giggled at various points during the incident. But that observation is completely immaterial: Children process traumatic experiences in ways that may seem unusual to the untrained eye. Moreover, as social science research demonstrates, for humans of all ages, giggling or smiling can actually be normal responses to stressful experiences. Additionally, and particularly relevant here, research demonstrates that ‘adults view Black girls as less innocent and more adult-like that their white peers.’ This phenomenon of ‘adultification’ is unfortunately common in American society, including the criminal justice system, and has led even careful observers to discount a young Black girl’s trauma.”

Support for these references to social science research was provided in the accompanying Declaration (under Penalty of Perjury) of Sarah Yvonne Vinson, an eminently qualified Triple Board-Certified Child & Adolescent, Adult and Forensic Psychiatrist.[2]

Finally while noting the State’s “utmost respect for the Court, including tis tremendous efforts to reduce implicit bias in this trial,,” the State said the Court’s “discounting the trauma of the children who testified at trial—in an authoritative judicial opinion, no less—will only exacerbate the trauma they have suffered. The Court should correct the public record to avoid that result.”

Conclusion

 This blog previously stated its disagreement with the Court’s rejection of the presence of children as an aggravating factor for sentencing.[3]

The Court also failed to acknowledge the judgment and courage of one of the children—17 year-old- Darnella Frazier—in deciding that day to use her cell phone to make a 10-plus minute video recording of the restraint and murder of Mr. Floyd.[4]

Finally, although not relevant to the Court’s opinion, Frazier’s traumatization unfortunately was further exasperated on July 6, 2021, when her innocent uncle (Leneal Lamont Frazier, age 40,) was killed in a car crash involving a Minneapolis police vehicle that was pursuing another vehicle containing a robbery suspect. Darnella said on FACEBOOK, “MINNEAPOLIS police killed my uncle . . . Another Black man lost his life in the hands of the police. Minneapolis police [have] cost my whole family a big loss. . . today has been a day full of heartbreak and sadness.” Later she added the following clarification to that post: “”I never said the police killed him on purpose. I said it was the police’s fault … The police car is the car that killed my uncle.” She wrote that the police made a bad decision by conducting a high-speed chase through a residential neighborhood, and that bad decision “cost my uncle his life.”[5]

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[1] Letter, Minnesota Attorney General Keith Ellison to Judge Peter Cahill, State v. Chauvin, Court File No.: 27-CR-20-12646 (July 7, 2021); Xiong, Attorney General challenges judge’s characterization of  girls’ reactions at Floyd murder scene, StarTribune (July 8, 2021).

[2] Declaration of Sarah Yvonne Vinson, State v. Chauvin, Court File No.: 27-CR-20-12646 (July 7, 2021).

Click to access MCRO_27-CR-20-12646_Other-Document_2021-07-07_20210708080542.pdf

[3] See these posts to dwekcommetaries.com: Derek Chauvin Trial: Week Four (April 2, 2021); Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment,  (June 28, 2021).

[4] See these posts to dwkcommentaries.com: Witnessing (April 25, 2021); Darnella Frazier’s Continued Witnessing (May 26, 2021); More Honors for Darnella Frazier (June 12, 2021).

[5] Hyatt & Miller, Mourners block street where Minneapolis police car crashed into car during pursuit, killing innocent driver, StarTribune (July 8, 2021); Bela, Darnella Frazier says her uncle was killed by a police car that was chasing a robbery suspect, Wash. Post (July 7, 2021).