Court of Appeals Reverses District Court’s Refusal To Follow Precedent on Third-Degree Murder Charge Against Derek Chauvin   

On March 5, only four days after it had heard oral argument, the Minnesota Court of Appeals ruled that Hennepin County District Court Judge Peter Cahill on February 11th erroneously had refused to honor binding precedent on third-degree murder and remanded the case for reconsideration of the prosecution’s motion to reinstate that charge against Derek Chauvin.[1]

The appellate court’s “Decision” stated, “ This court’s precedential decision in Noor [upholding a third-degree murder conviction of another former Minneapolis policeman] became binding authority on the date it was filed [February 1, 2021]. The district court therefore erred by concluding [on February 11th] that it was not bound by the principles of law set forth in Noor and by denying the state’s motion to reinstate the charge of third-degree murder on that basis. We reverse the order of the district court and remand for reconsideration of the state’s motion. On remand, the district court has discretion to consider any additional arguments Chauvin might raise in opposition to the state’s motion. But the district court’s decision must be consistent with this decision.”

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[1] Appellate Court Opinion, State v. Chauvin, Minnesota Court of Appeals, Case   # A21-0201 (Mar. 5, 2021)(this document is available for downloading on the District Court’s website, https://www.mncourts.gov/media/StateofMinnesotavDerekChauvin); Xiong, Court of Appeals: Trial judge improperly refused to reinstate third degree murder charge against Derek Chauvin, StarTribune (Mar. 5, 2021); Court Denies Third-Degree Murder Charges for George Floyd Killing, dwkcommentaries.com (Feb. 12, 2021).

 

More Evidence of Time of Police Restraint of George Floyd   

As noted in a prior post, the original May 29th criminal complaints against the four former Minneapolis policeman stated that Derek Chauvin held his knee to Floyd’s neck for 8 minutes, 46 seconds, a figure that became prominent in subsequent protests. However, on June 18th prosecutors admitted a mathematical error in calculating that time and said the actual time was 7 minutes and 46 seconds.[1]

Subsequent prosecution analysis of the time-stamped body camera footages of the other three defendants indicated that Chauvin had his knee on Floyd’s neck “for at least nine minutes flat, but possibly for as long as 9 minutes, 31 seconds.” Thus, some prosecution filings have said the length of the restraint was “approximately nine minutes” and at least once as “more than nine minutes and twenty seconds.” [2]

Most recently a prosecution spokesperson said the length of time of the restraint would be documented by evidence at trial.

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[1] Revised Length of Time for Minneapolis Police Restraint of George Floyd, dwkcommentaries.com (June 18, 2020) .

[2] Forliti (Assoc. Press), Prosecutors: Officer was on Floyd’s neck for about nine minutes, StarTribune (Mar. 4, 2021).

 

Issues Regarding Motions in Limine in Chauvin Criminal Case

As discussed in a prior post, on February 8 Defendant Derek Chauvin submitted to the District Court his motions in limine seeking to limit at trial 37 items of certain evidence, anticipated questioning by opposing counsel or anticipated arguments of opposing counsel.[1] On March 4, the State filed its opposition to five of these requests in their entirety and partial objections to four others. Below is a brief account of those issues.[2]

In addition, on March 4, the State filed a motion to amend its previous motion in limine and to compel discovery. It also is summarized below.

Chauvin’s Total Objections to Five Requests

Request 18: Preclude witness police officers from testifying as to their opinion on how they would have handled the arrest of Mr. Floyd differently. According to the prosecution, “Police witnesses may testify how an officer should have handled Floyd’s arrest in light of Minneapolis Police Department (MPD) policies and training.”

Request 21: Preclude “speculative testimony from Genevieve Hanson that she believes if she had intervened she could have saved Mr. Floyd.” According to the prosecution, Ms. Hanson was an “off-duty firefighter . . . on the scene while Floyd was pinned to the ground, and who repeatedly asked the Defendants to check Floyd’s pulse and to begin chest compression . . . [and who] believes that if she [had] intervened , she could have saved Mr. Floyd . . . [and who may have personal knowledge of police officer training [to testify about its relevance to the conduct of the defendants].

Request 22: Preclude testimony of Donald Williams as to his training, experience and/or expertise in mixed martial arts, boxing or other training. According to the prosecution, Williams was present at the scene and exclaimed that Chauvin was placing Floyd in a ‘blood choke” and pleaded with Chauvin to stop that hold and that Williams’ personal experience as a fighter, wrestler and Mixed Martial Arts performer have given him personal experience as to how this kind of hold “can cut off circulation and affect a person’s breathing.”

Request 23: Preclude “any member of the Minneapolis Fire Department and paramedics from testifying as to cause and manner of Mr. Floyd’s death.” According to the prosecution, such witnesses “may testify as to their observations and first-hand assessments of Floyd’s condition, . . including their observations, made in the course of treating Floyd, as to the possible causes of Floyd’s condition.”

 Request 32: Preclude “the entirety of the proffered testimony of Dr. Sarah Vinson (psychiatric evaluation of George Floyd) on the grounds that the evaluation is speculative, based upon multiple levels of inadmissible hearsay, fails to meet scientific standards, offers no assistance to the jury, or so favors one party.” According to the prosecution, Dr. Vinson did not perform a ‘psychiatric evaluation of George Floyd.’  Instead, her expert testimony “describes the typical signs and symptoms of anxiety, fear responses to traumatic events, and panic attacks, including during police encounters,” and Floyd’s “sweating, shaking, an increased rate of breathing, thick saliva, and a sensation of shortness of breath . . . was consistent with an adrenaline-based fear response . . .[and] a panic attack and Trauma and Sensor Related Disorders.”

Chauvin’s Partial Objections to Four Requests

 Request 14: Direct State to “instruct State witnesses that they are not to assert a personal belief or opinion as the Defendant’s guilt or innocence, or whether or not the defendant is the type of person who could commit such an offense.” According to the prosecution, although there is a general rule against such testimony, it is allowed i for fact witnesses to express factual, rather than legal conclusions while expert witnesses are allowed to testify about the cause and manner of death. In addition, if the defendant offers evidence of a pertinent character trait of the defendant, the prosecution may attempt to rebut such testimony.

Request 19: Preclude “testimony about any police policy . . . that was not in effect at the  time of Mr. Floyd’s arrest or any subsequent changes in policy.” The prosecution agrees with this request, except for “policies or procedures on which Chauvin may have been trained , but that may not have been in effect at the time of Floyd’s arrest.”

Request 31: Preclude “the State from playing, publishing or otherwise relying upon the statements of co-defendants Thao and Lane on the grounds that  [Chauvin] would not be permitted to cross-examine these co-defendants.”  According to the prosecution, this Request is too broad if it applied to non-testimonial statements by co-defendants  “made during their encounter with Floyd that were captured by the body-worn cameras.” It is also too broad if it precluded the prosecution from using these statements if these co-defendants do testify at Chauvin’s trial.

Request 36: Preclude “any evidence of or reference to citizen complaints filed against Mr. Chauvin in his capacity as a police officer or investigated by the [MPD] whether sustained or deemed unfounded.” According to the prosecution, this request should not deny the prosecution from offering evidence . . . that this Court has already admitted into evidence [Chauvin’s “incidents” on 8/22/15 and 6/25/17].”

Prosecution’s Motion To Amend Its Motion in Limine[3]

Prosecution seeks to prohibit Dr. David Fowler, a defense expert witness, from “testifying regarding the opinion of any other non-testifying experts he consulted in preparation of the Forensic Panel Report  or testifying that other experts agree with Dr. Fowler’s opinion, analysis, or conclusion.”

Prosecution also seeks an order “compelling Defendant to disclose the specific opinions of non-testifying experts whose data, analysis, opinion, or conclusions contribution to the opinions, analysis, or conclusions contained in the Forensic Panel Report” and to conduct a hearing outside the presence of the jury, for Dr. Fowler [to] identify which opinions in that report are his work alone.”

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[1] Motions in Limine Before Derek Chauvin Criminal Trial, dwkcommentareis.com (Feb. 18,2021).

[2] Memorandum of Law in Opposition to Defendant’s Motions in Limine, State v. Chauvin, Hennepin County District Court, File no. 27-CR-20-12646 (Mar. 4, 2021). This document may be downloaded from the District Court’s website.

[3] State’s Amended Motion in Limine 2 and Motion To Compel Discovery and a Hearing, State v. Chauvin, Hennepin County District Court, File no. 27-CR-20-12646 (Mar. 4, 2021). This document may be downloaded from the District Court’s website.

 

Details about Upcoming Criminal Trial of Derek Chauvin

The StarTribune  has  provided the following information about the criminal trial of Derek  Chauvin that is scheduled to start on March 8th: when and where it will take place; who will be allowed in the courtroom;  a diagram of the courtroom; locations of the media; how to watch the livestream of the trial; COVID-19 measures; security; road closures; protests; and cameras in the courtroom.

DeLong, Chauvin explainer, StarTribune (Mar. 2, 2021). 

 

 

Pandemic Journal (# 40): The Latest on the COVID-19 Pandemic   

As of the end of February 2021, the word had recorded 114,681,354 COVID-19 coronavirus cases and 2,542,827 deaths.  The statistics for the U.S. were 29,255,365 cases and 525,778 deaths. For the State of Minnesota, 485,000 cases and 6,551 deaths. [1]

Now good news about the COVID-19 Coronavirus Pandemic. Worldwide, 244 million vaccine does have been provided with 53.5 million people fully vaccinated. For the U.S.: 75.2 million doses and 24.8 million fully vaccinated. For the State of Minnesota, 1.39 million; and 454,000 fully vaccinated people.[2]

Last week another vaccine, this one by Johnson & Johnson, joined vaccines by Pfizer and Moderna that have been approved for use in the U.S.[3]

Moreover, the numbers of new cases and deaths are decreasing in Minnesota and many other parts of the U.S. although there is concern that the numbers might be increasing again.[4]

This blogger and his wife are thankful that they have not contracted the COVID-19 coronavirus and by the end of this week, as senior citizens, both of us will have had two doses of the Pfizer vaccine. We also are thankful that our immediate family members have not contracted the coronavirus and pray for their continued good health and eventually becoming eligible for the vaccinations.

I also continue to find comfort and spiritual renewal in this stressful Pandemic by attending virtual worship services and adult education programs at my Minneapolis church, Westminster Presbyterian.

Biblical Text for Recent Worship Service

The lives of the 500,000 Americans who have died from COVID-19 were memorialized in the February 28th worship service at Westminster.

The Biblical text for the day  was from the Christian Bible’s Old Testament’s Book of Lamentations (1: 1-4), which generally is thought to have been written by the Prophet Jeremiah to mourn the destruction of Jerusalem in 586 BCE. Here is that passage:

“How lonely sits the city
that once was full of people!
How like a widow she has become,
she that was great among the nations!
She that was a princess among the provinces
has become a vassal.

She weeps bitterly in the night,
with tears on her cheeks;
among all her lovers
she has no one to comfort her;
all her friends have dealt treacherously with her,
they have become her enemies.

Judah has gone into exile with suffering
and hard servitude;
she lives now among the nations,
and finds no resting place;
her pursuers have all overtaken her
in the midst of her distress.

The roads to Zion mourn,
for no one comes to the festivals;
all her gates are desolate,
her priests groan;
her young girls grieve,
and her lot is bitter.”

The Sermon, “Listening to Lament” [5]

 The sermon, “Listening to Lament,”  by Senior Pastor Tim Hart-Andersen, featured the lighting of 50 candles and the naming of 50 Americans, chosen at random, each to honor 10,000 of the 500,000 deceased.

The Pastor emphasized that each of these people had unique lives that will be missed by their relatives and friends and that lamenting their dying was important for all of us. He recalled he and his wife’s visiting the Vietnam Veterans Memorial in Washington, D.C., which has the names of the 58,318 Americans who were killed during that war engraved on a granite wall, and observing people standing near the names of their loved ones on the wall and crying.

The Pastor also said that this honoring the 500,000 was also an occasion to express gratitude for their lives, to acknowledge the resilience of their survivors in many ways, to recognize and help the many partners each of us as individuals and as a community of faith have, to continue to be engaged in efforts to improve the justice of our health system and access to medical care and vaccines and to say thanks for the generosity of many people helping others and our communities of faith.

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[1] COVID-19 Coronavirus Pandemic,worldometer.

[2] Vaccine doses overview, Our World in Data.

[3] Weiland & LaFraniere, F.D.A. Clears Johnson & Johnson’s Shot, the third Vaccine for U.S., N.Y. Times (Feb. 27, 2021).

[4] Snowbeck, Minnesota’s COVID cases are down, but for how long?, StarTribune (Feb. 27, 2021); Cunningham & Hawkins, Global coronavirus numbers edging back up after weeks of decline, says WHO, Wash. Post (Mar. 2, 2021); Greve, CDC chief warns of ‘potential fourth surge’ and warns US to keep Covid rules, Guardian (Mar. 1, 2021); Reuters, Decline in Coronavirus “May Be Stalling,’ C.D.C. Director Warns (Video),N.Y. Times (Feb. 26, 2021).

[5] The video and bulletin for the service are online. The text of this sermon will be added to the Westminster website.

Appellate Hearing on Third-Degree Murder Charge Against Derek Chauvin 

Last month the Hennepin County District Court denied the prosecution’s motion to reinstate or amend pleadings to add third-degree murder charges against the four defendants in the George Floyd killing. The State immediately appealed that ruling and the Minnesota Court of Appeals immediately allowed that appeal.[1]

On March 1, a three-judge panel of that appellate court held a hearing on that appeal insofar as it involved Chauvin.[2] According to a StarTribune journalist who heard the argument, the appellate judges seemed skeptical of the arguments of Chauvin’s attorney who was urging affirmance of the dismissal of that charge against his client. For example, one of the judges asked both attorneys to focus on whether the trial judge was bound by the recent Court of Appeals’ decision upholding the third-degree murder conviction of another Minneapolis police officer, Mohamed Noor, or was allowed to not follow the appellate court’s ruling.

The attorney for the prosecution, Neal Katyal of a Washington, D.C. large law firm, said the ruling was binding as soon as it was published and unless it is overturned by the state Supreme Court. During the argument one of the three appellate judges said the court would issue an expedited decision in the case “as soon as possible” given the start of Chauvin’s trial on March 8.

Later the same day, the Minnesota Supreme Court, with unusual speed, agreed to grant review of  the appeal by Mr. Noor and to have oral arguments in the case in June. [3]

Meanwhile, the trial court on March 1 issued its Trial Management Order setting conditions for attendance of spectators, jurors and potential jurors, witnesses, attorneys and parties.[4]

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[1] See the following posts to dwkcommentaries.com: Court Denies Third-Degree Murder Charges for George Floyd Killing (Feb. 12, 2021); Comment: State Appeals Denial of Third-Degree Murder Charges in George Floyd Cases (Feb. 23, 2021); Appellate Court Throws Another Threat to Delayed Start of Chauvin Criminal Trial (Feb. 24, 2021).

[2] Xiong, Court of Appeals to hear third-degree murder argument in Derek Chauvin case today, StarTribune (Mar. 1, 2021); Xiong, In prosecution bid to add charges in George Floyd death,  Derek Chauvin’s attorney faces questions, skepticism before Court of Appeals, StarTribune (Mar. 1, 2021).

[3] Olson, With unusual speed, Minn. Supreme Court agrees to hear appeal in Noor case, StarTribune (Mar. 1, 2021).

[4]  Trial Management Order, State v. Chauvin, Hennepin County District Court, Dist. Ct. File 27-CR-20-12646 (Mar. 1, 2021).(this order is available on the court’s website,

Federal Investigation of the Killing of George Floyd

On or about February 23, it became known that a new federal grand jury had been empaneled in Minneapolis to investigate whether Derek Chauvin had violated George Floyd’s civil rights, i.e., his right against unreasonable seizure or right to due process.[1]

Apparently this federal investigation does not involve the other ex-officers now facing state charges of aiding and abetting Chauvin’s conduct.

Because grand jury proceedings are secret, little is known about the specifics of the investigation.

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[1] Arango & Benner, With New Grand Jury, Justice Department Revives Investigation Into Death of George Floyd, N.Y. Times (Feb. 23, 2021), https://www.nytimes.com/2021/02/23/us/george-floyd-death-investigation-doj.html?searchResultPosition=1; Balsamo (Assoc. Press), Federal grand jury hearing evidence in death of George Floyd, StarTribune (Feb. 24, 2021).

 

 

 

Appellate Court Imposes Another Threat To Delay Start of Chauvin Criminal Trial   

A prior post discussed the order by the Minnesota Court of Appeals to the Hennepin County District Court to send its entire file to the appellate court and the threat that created to the scheduled start of the Derek Chauvin criminal trial on March 8.[1]

On February 23, the Court of Appeals imposed another threat to the scheduled start of that trial by setting a virtual hearing for the appeal next Monday, March 1 (at 1:00 p.m.) to hear arguments on whether or not a third-degree murder charge against Chauvin is permissible. It also ordered Chauvin’s attorney to file his response to this appeal this coming Friday (February 26).[2]

The latest order by the Court of Appeals also said that when a trial court denial of a motion to add a charge that arises from the same evidence for the current charges can have a “critical impact” meriting appellate review. “This is so because, if the prosecution is not permitted to charge a defendant in a single proceeding with all offenses arising out of a single behavioral incident, it is procedurally barred from doing so later after a conviction or acquittal on any of the offenses. Here, there is no dispute that the charge of third-degree murder arises from the same behavioral incident as the remaining charges.”  As a result, the Court of Appeals denied Chauvin’s motion to dismiss the appeal.

Joseph Daly, emeritus professor at Mitchell Hamline School of Law, said that however and whenever this appellate court rules, this development is likely to delay the Chauvin trial. If the third-degree charge is sustained, Chauvin’s attorney could argue for more time to prepare for trial and any denial of such a request would give Chauvin an argument for denial of due process. Moreover, whoever loses in the Court of Appeals could ask for review by the Minnesota Supreme Court, which would take months to resolve.

At the same time in a separate order,the Court of Appeals denied the prosecution’s request to expedite review of the trial court’s denial of third-degree murder aiding and abetting charges against the other three defendants (J. Alexander Kueng, Thomas Lane and Tou Thao). Instead, oral arguments on that aspect of the appeal will be heard at a later date.

The same legal issue is involved in the third-degree murder conviction of  another former Minneapolis police officer, Mohamed Noor, who on February 25 filed a petition for review by the Minnesota Supreme Court. If that court refuses to hear his appeal, the Court of Appeals decision in his case expanding the scope of such a charge will stand. [3]

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[1] Has the Chauvin Trial  Been Delayed????, dwkcommentaries.com (Feb.  23, 2021).

[2]  Xiong, Court of Appeals will hear arguments to add third-degree murder charge in George Floyd  case, StarTribune (Feb. 23, 2021); Assoc. Press, Appeals court to weigh 3rd-degree murder charge for Chauvin, Wash. Post (Feb. 23, 2021); Order, State v. Chauvin, A21-0201 (Minn.. Ct. App. Feb. 23, 2021); Order, State v. Chauvin, Kueng, Lane & Thao. #!21-0201 & #A21-0202 (Minn. Ct. App. Feb. 23, 2021). Copies of the Court of Appeals documents can be obtained on the District Court of Minnesota website: https://www.mncourts.gov/media/StateofMinnesotavDerekChauvin.

[3] Olson, Former Minneapolis cop Mohamed Noor asks state Supreme Court to hear his third-degree murder appeal, StarTribune (Feb. 25, 20210.

 

Has the Chauvin Trial Been Delayed???? 

On February 11, the Hennepin County District Court denied the State’s motion to amend its complaints against the four defendants in the George Floyd criminal cases to assert third-degree murder charges.[1]

On February 22, the State appealed that decision to the Minnesota Court of Appeals. A prime basis for the appeal is that appellate court’s recent ruling that sustained a third-degree murder charge against another former Minneapolis policeman, Mohamed Noor. But that decision will soon go into hibernation when Noor files an expected appeal to the Minnesota Supreme Court.[2]

Immediately after the filing of this appeal in the Floyd cases, the Court of Appeals ordered the District Court to “FORWARD THE FILE, EXHIBITS, AND ALL TRANSCRIPTS [in the Chauvin case] TO THIS OFFICE WITHIN 10 DAYS FROM THE DATE OF THIS NOTICE.”  [3]

Moreover, the District Court was ordered to “include a numbered itemized list of all documents, transcripts, and exhibits contained in the record, identifying each with reasonable definiteness; each document and exhibit having endorsed thereon the appellate court file number and corresponding number from the itemized list. A copy of this list shall also be sent to all parties of record.”

Finally the Court of Appeals stated, “Physical records submitted to the appellate courts will be returned to your office upon entry of judgment or dismissal order, and not before the 30 days allowed for filing a petition for further review in the Supreme Court has expired.”

Compliance with this appellate order should make it impossible for the trial court to finish its final two weeks of preparation for the commencement of the Chauvin trail on March 8 and to conduct the trial when its entire record id being prepared to be sent to the Court of Appeals.

Any reason to doubt this conclusion?

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[1] Court Denies Third-Degree Murder Charges for George Floyd Killing, dwkcommentaries.com Feb. 12, 2021).

[2] Xiong, Third-degree murder charges against George Floyd cops sought again, StarTribune (Feb. 22, 2021).

[3] Letter, Clerk of the Minnesota Appellate Courts to Hennepin County District Court  Administrator (Feb. 23, 2021). This letter is publicly available on the District Court’s website, https://www.mncourts.gov/media/StateofMinnesotavDerekChauvin.

 

The Challenge of a Fair Trial for Derek Chauvin 

D.J. Tice, an opinion columnist for the StarTribune, says that Hennepin County District Court Judge Peter Cahill faces  a “staggering a challenge . . .in ensuring a proceeding that will actually deserve to be called a fair trial for Chauvin and eventually three other cops accused in the tragic and world famous death of George Floyd on a Minneapolis street last May.”[1]

This challenge springs from the fact that “many minds have long since been made up by the worldwide dissemination of the shocking initial video images of one part of Floyd’s fatal encounter with the police, and by the way his story quickly became an emblem, symbolizing centuries of racial injustice and the long history of police mistreatment of Black Americans.”

Indeed, from ” the moment this agonizing incident burst into the public’s consciousness, the presumption of guilt regarding these defendants — the open-and-shut conclusion of guilt — has been loudly declared by virtually every prominent public official who has addressed the matter. And a, well, ‘very negative’ view of the defendants has been widespread, too, among public officials and community leaders, in news coverage and commentary (including on these pages [of the StarTribune]) and everywhere else.”

This view immediately was voiced by Minneapolis Mayor Jacob Frey, then presidential candidate Joe Biden, Minnesota Governor Tim Walz, Minnesota’s U.S. Senators (Amy Klobuchar and Tine Smith), the Minneapolis Police chief, state public safety commissioner and Minneapolis City Council members.

But there is a serious issue of fact as to the cause of death.

“When a legal proceeding is as emotionally supercharged as this one, and has taken on such enormous symbolic significance, leaders of the community would seem to have a particular duty to urge the public to remain calm and patient, to respect the processes of law, and to withhold final judgment until all the facts and arguments from all sides have been fairly examined.” Better late than never for such a message.”

Reactions

I share these concerns, especially when “Minneapolis residents and business owners say anxiety is building  especially as. . .[Chauvin] heads to trial.” Moreover, “city and state leaders plan to bring thousands of soldiers, sheriffs’ deputies and police into the metro area” and “expect tensions will escalate as the trial . . . nears a close and people wait to see whether the jury acquits him, a decision that would cement activists’ fears.“[2]

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[1]  Tice, The challenge of a fair trial for Chauvin, StarTribune (Feb. 21, 2021).

[2] Berkel & Navratil, With Derek Chauvin trial looming, Minneapolis faces balancing act on police, StarTribune (Feb. 21, 2021).