Developments in State Criminal Cases for George Floyd Killing

 There have been four recent developments in the state criminal cases over the killing of George Floyd: (a) the state trial court’s delaying the criminal trial of the other three defendants (Thomas Lane, J. Alexander Kueng and Tou Thao); (b) conducting a hearing on Lane’s motion for discovery of certain use-of-force reports by the Minneapolis Police Department; (c) conducting a hearing on motions for sanctions for alleged leak of alleged Chauvin offer to plead guilty; and (d) Thao’s motion for sanctions for alleged illegal pressure on Hennepin County Medical Examiner.

Delay of Trial [1]

At the May 13 pretrial hearing in the three cases, Judge Peter Cahill announced that the trial would be delayed from August 25, 2021 to March 7, 2022. The Judge gave three reasons for this postponement: (a) provide time for the Judge to deal with pending issues in the cases; (b) provide time for the recently filed federal criminal case against all four ex-officers to proceed since it carries higher potential penalties; [2] and (c) provide time for the publicity about the trial and conviction of Derek Chauvin to diminish.

The three defendants favored the postponement. The State did not .

Nekima Levy Armstrong, a lawyer and prominent civil rights activist in Minneapolis, did not approve of this postponement. She said, “I think we they should have just moved forward. I don’t think it helps our community in a positive way to have to wait about another year.”

Lane’s Motion for Discovery [3]

Previously Lane had requested the State to disclose all use-of-force reports for the last 30 years in which a Minneapolis police officer intervened verbally or physically against another officer’s use of force and the State objected. Lane’s attorney believes there are no such reports and thus discredit the aiding and abetting charges against Lane (and the other two ex-officers )for not intervening to stop Chauvin’s restraint of George Floyd.

Matthew Frank for the State argued that the request was overly broad and should be denied. ts brief stated, that Lane had “not established how the intentions and actions of individual police officers in past years in other incidents would be admissible to impeach testimony about the objectively reasonable officer standard. His failure to address the factual or legal standards necessary to this motion highlight that this is not a serious discovery motion, but simply an attempt to usurp the Court’s time and resources so counsel for Defendant Lane can obtain a public forum to argue his theory of the case. His motion should be summarily denied.”

The Judge said he would take the motion under advisement and later issue an order on the motion.

Three Co-Defendants Motion for Sanctions [4]

The three co-defendants (Lane, Kueng and Thao) have alleged that the prosecution leaked to the New York Times an alleged offer by Chauvin to plead guilty to third -degree murder only three days after the killing of Mr. Floyd.[5]

At the May 13th  hearing, this subject was raised when the three co-defendants asked for the prosecutors to testify under oath or submit affidavits that they did not leak this information, and Judge Cahill revealed that shortly after publication of the Times article he had asked the prosecutors to do just that, but only one such affidavit was provided (by Matthew Frank) while Attorney General Ellison submitted a letter (not under oath) that the prosecution team was not the source.

Judge Cahill tentatively scheduled an August hearing on this matter, and one of the co-defendants’ attorneys said he would subpoena prosecutors who had not submitted affidavits as well as the New York Times reporter for the article (Tim Arango) even though Judge Cahill expressed concern about a subpoena to the journalist in light of his First Amendment protections. (Indeed, the New York Times subsequently stated that it “will vigorously defend against any effort to target our reporters and their sources.”

Thao’s Motion for Sanctions [6]

On March 12 attorneys for Tou Thao filed a motion for sanctions for alleged prosecutorial misconduct in allegedly (a) having Dr. Roger Mitchell, a former Chief Medical Examiner for Washington, D.C., pressure Dr. Andrew Baker, the Hennepin County Medical Examiner, to change his preliminary findings of “no physical findings [supporting] a diagnosis of traumatic asphyxia or strangulation” to the final findings of “neck compression;” and (b) after Chauvin’s chief medical expert (Dr. Fowler) testified that in his opinion the cause of death was undetermined, Dr. Mitchell wrote to Maryland officials to investigate Dr. Fowler’s qualifications and such an investigation was commenced by the Maryland Attorney General.

The motion then requested an order (a) dismissing the criminal charges against Thao; (b) barring seven attorneys (Including Attorney General Ellison and Neal Katyal) from participating in any trial against Thao; (c) asserting complaints about these attorneys to their professional responsibility authorities; and (d) requiring the State to report Dr. Mitchell to the appropriate medical boards.

The same day (May 12) Minnesota Assistant Attorney General Matthew Frank sent a letter to the Judge, saying that this motion asserted, “Bizarre allegations . . . [that] are false and wrong” and that the State requested one week to file a response to the motion.

Conclusion

The issues keep coming.

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

[1] Xiong, State trial postponed to March 2022 for ex-officers charged with aiding and abetting murder in George Floyd death, StarTribune (May 13, 2021); Furber, Judge Delays Trial for Other Officers Charged in Killing of George Floyd, N.Y. Times (May 13, 2021); Bailey, Trial for 3 former officers charged in George Floyd’s murder delayed until March, Wash. Post (May 13, 2021); Karnowski & Forliti (AP), Trial for 3 ex-cops charged in Floyd’s death pushed to March, Wash. Post (May 13, 2021); Winter, Judge Delays trial in George Floyd Case, W.S.J. (May 13, 2021).

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

[3] See n.1 supra. See also State’s Response to Defendant Lane’s February 10, 2021 Discovery Motion, State v. Lane, Hennepin County District Court, Case No. 27-CR-20-12951 (May 11, 2021).

[4] See n. 1 supra.

[5] See n. 1 supra; Did Derek Chauvin Agree to Plead Guilty to Third-Degree Murder for Killing George Floyd, dwkcommentaries.com (Feb. 11, 2021).

[6] See n. 1 supra. See also  Motion for Sanctions for Prosecutorial Misconduct Stemming from Witness Coercion, State v. Thao, Court File No. 27-CR-20-12949, Hennepin County District Court May 12, 2021), https://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12949-TT/NOMM05122021.pdf; Letter, Matthew Frank (Assistant Attorney General) to Judge Cahill, State v. Thao, Court File No. 27-CR-20-12949, Hennepin County District Court May 12, 2021).. https://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12949-TT/Correspondence05122021.pdf.

 

 

 

Derek Chauvin Trial: Court Finds Aggravating Factors for Sentencing

On May 11, Judge Peter Cahill issued an opinion finding that there are “beyond a reasonable doubt” four  aggravating factors in the killing of George Floyd last year that clear the way to sentence Derek Chauvin, the fired Minneapolis police officer,to a prison term above state guidelines. [1]

These factors are the following: (1) Chauvin “abused a position of trust and authority” as a police officer; (2) he “treated George Floyd with particular cruelty;” (3) children were present when Floyd was pinned to the pavement at 38th and Chicago for more than 9 minutes until he died; and (4) Chauvin committed the crime with “active participation” of others, namely three fellow officers.

Under Minnesota law, even though Chauvin was convicted on all three counts—second and third degree murder and second degree manslaughter—he may be sentenced only on the most serious charge (second-degree murder) because all charges stem from one act carried out against one person.  Although second-degree murder has a maximum of sentence of 40 years. the practical maximum, say legal experts, is 30 years even with the above aggravating factors.

These legal conclusions come from a 1981 Minnesota Supreme Court case (State v. Evans), which held that generally when an upward departure is justified “the upper limit will be double the presumptive sentence length,” which for someone like Chauvin with no criminal record would be 12 and ½ years.

Ted Sampsell-Jones, a professor at the Mitchell Hamline School of Law and an appellate criminal defense attorney, added that with such a maximum sentence, the  first 20 years would be served in prison and the balance on supervised release, if Chauvin qualifies.

The actual sentencing of Chauvin is scheduled for June 25.

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

[1] Verdict and Findings of Fact Regarding Aggravated Sentencing Factors, State V. Chauvin, Court fFle No. 27-CR-20-12646, Hennepin County District Court, May 11, 2021), https://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12646/Order05112021.pdf; Walsh, Judge backs most aggravating factors in Chauvin trial, clearing way for longer prison term, StarTribune (May 12, 2021); Ferliti (AP), EXPLAINER: How will judge’s ruling affect Chauvin sentence?, Wash. Post (May 12, 2021); Eligon, Chauvin May Face Longer Sentence Over ‘Cruel’ Actions and Abuse of Power, N.Y. Times (May 12, 2021).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Federal Criminal Charges Against Ex-Minneapolis Policemen Over George Floyd Killing     

On May 7, the federal court in Minneapolis unsealed a federal grand jury indictment of four ex-Minneapolis policeman—Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thau—for allegedly using the “color of the law” 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 are charged with failing to help provide medical care to Floyd and “thereby acting with deliberate indifference eot a substantial risk of harm.” [1]

The latter three defendants, who are out on bail and scheduled for an August trial on the state charges,, appeared May 7  via Zoom before U.S. District Court Judge  Paul A. Magnuson. Chauvin, however, who is in a state prison as a result of his conviction in state court on charges of second and third degree murder and second degree manslaughter, apparently will appear separately via Zoom on the new federal charges.[2]

The federal statute authorizing the case against Chauvin carries a possible sentence of life in prison or the death penalty because Floyd died during the commission of the alleged offenses, but it is not yet known what penalty federal prosecutors would seek.

This indictment also charges Chauvin with two separate counts alleging he willfully deprived a 14-year-old Minneapolis boy of his civil rights during a 2017 arrest. Chauvin pinned the teenager down and struck him on the head with his flashlight, then grabbed him by the throat and hit him again, according to court documents.

Reactions to this Case

Minnesota Attorney General Keith Ellison commented on these new federal charges, “”The federal government has a responsibility to protect the civil rights of every American and to pursue justice to the fullest extent of federal law.”  federal prosecution for the violation of George Floyd’s civil rights is entirely appropriate, particularly now that Derek Chauvin has been convicted of murder under Minnesota law for the death of George Floyd. The State is planning to present our case against the other three defendants to another jury in Hennepin County later this summer.”

The attorney for the Floyd family, Benjamin Crump, also commented as follows, “Today’s federal indictment for criminal civil rights violations associated with the murder of George Floyd reinforces the strength and wisdom of the United States Constitution. The Constitution claims to be committed to life, liberty, and justice, and we are seeing this realized in the justice George Floyd continues to receive. … We are encouraged by these charges and eager to see continued justice in this historic case that will impact Black citizens and all Americans for generations to come.”

Also supporting these new charges were Al Sharpton and Derrick Johnson:

  • Sharpton, a longtime civil rights figure who eulogized Floyd at his funeral last year and has been a visible supporter of the family, said this new case “shows we have a Justice Department that deals with police criminality and does not excuse it nor allow police to act as though as what they do is acceptable behavior in the line of duty. . . . This is a significant development for those of us who have been engaged in the struggle and police reform movement.”
  • Johnson, National President of the NAACP, called the indictments a “step in the right direction,” but said the case highlights the need for police reforms, including implementing a national registry of police misconduct data.” While Derek Chauvin murdered George Floyd over 9 minutes and 29 seconds, no other police officer on the scene acted to save his life, The horrifying actions and inactions of all four police officers resulted in the preventable death of a loving father, son and brother. No police officer is above the law, nor should they ever be shielded from accountability. We need urgent reforms now.”

The Minneapolis Police and Peace Officers Association, which is providing legal representation for the four officers in their state cases, said it will be doing the same in federal court with the same attorneys.

This criminal case is unrelated to the recent U.S. Department of Justice investigation of the Minneapolis Police Department and to pending developments in the state criminal case against Chauvin—the prosecution’s request for enhanced sentencing of Chauvin, his sentencing hearing this June, his request for a new trial and his anticipated appeal—and the scheduled state court trial of the other three defendants in August. [3]

 

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[1] Indictment, U.S. v. Chauvin, Thao, Kueng and Lane, U.S. Dist. of Minn. (Case 0:21-cr-00108-PAM-TNL (May 6, 2021), https://int.nyt.com/data/documenttools/george-floyd-killing-civil-rights-charges/a0453a1c7b14ce33/full.pdf; Mannix, 4 ex-Minneapolis cops indicted on civil rights charges in George Floyd death, StarTribune (May 7, 2021); Nakamura, Justice Dept. charges ex-Minneapolis police officers with violating George Floyd’s civil rights, Wash. Post (May 7, 2021); Benner, Four former Minneapolis police officers are indicted on charges of violating George Floyd’s civil rights, N.Y. Times (May 7, 2021); Gurman & Barrett, Federal Grand Jury Indicts Former Minneapolis Police Officers in George Floyd Killing, W.S.J. (May 7, 2021).

[2] See Derek Chauvin Trial: Week Seven (Conviction), dwkcommentaries.com (April 21, 2021).

[3] See these posts to dwkcommentaries.com: Department of Justice Starts Investigation of Minneapolis Police Department (April 22, 2021); Derek Chauvin Trial: Defense Motion for New Trial and Impeachment of Jury Verdict (May 6, 2021);Update on Status of Trial Dates in George Floyd Criminal Cases (Feb. 4, 2021).

 

 

 

 

 

Derek Chauvin Trial: Defense Motion for New Trial and Impeachment of Jury Verdict

On May 4, Defendant Derek Chauvin submitted to the trial court a motion for a new trial and impeachment of the jury verdict. These matters are summarized below.[1]

Motion for New Trial [2]

This motion is based on Minnesota Rules of Criminal Procedure 26.04, subd. 1, which provides that the trail court may grant a new trial on the issue of guilt on any of the following grounds:

“(1)The interests of justice; (2) Irregularity in the proceedings, or any order or abuse of discretion that deprived the defendant of a fair trial; (3) Prosecutorial or jury misconduct; (4) Accident or surprise that could not have been prevented by ordinary prudence; (5) Newly discovered material evidence, which with reasonable diligence could not have been found and produced at the trial; (6) Errors of law at trial, and objected to at the time unless no objection is required by these rules; or (7) A verdict or finding of guilty that is not justified by the evidence, or is contrary to law.”

In support of this motion Chauvin alleges that:

  • “(a) The court abused its discretion in denying Chauvin’s motion for a change of venue.
  • (b) The court abused its discretion in denying Chauvin’s motion for a new trial on the ground that there was adverse publicity during the trial with respect to the defense’s expert witnesses.
  • (c) The court abused its discretion in failing to sequester the jury for the duration of the trial.
  • (d) The State committed pervasive, prejudicial prosecutorial misconduct. . . . including but not limited to: disparaging the Defense; improper vouching; and failing to adequately prepare its witnesses.
  • (e) The court abused its discretion by failing to order Morries Hall to testify or, alternatively to admit into evidence Mr. Hall’s statement to law enforcement regarding his interactions with George Floyd and presence at the May 25, 2020 incident.
  • (f) The court abused its discretion by submitting instructions to the jury that failed to accurately reflect the law with respect to second-degree unintentional murder, third-degree murder, and authorized use of force.
  • (g) The court abused its discretion by permitting the State to present cumulative evidence with respect to use of force.
  • (h) The court abused its discretion by ordering the State to lead witnesses on direct examination.
  • (i) The court abused its discretion by failing to order that a record be made of the numerous sidebars that occurred during the trial.
  • (j) The cumulative effect of the court’s multiple errors deprived Chauvin of a fair trial in violation of his constitutional rights.”

Motion for Impeachment of Verdict [3]

This motion is based on the Minnesota Supreme Court’s decision in the Schwartz case and Minn. R. Crim. Pro. 26.03, subd. 20(6). and the allegations that “that the jury committed misconduct, felt threatened or intimidated, felt race-based pressure during the proceedings, and/or failed to adhere to instructions during deliberations.”

Issues Regarding Juror Brandon Mitchell [4]

Mr. Mitchell, a Black man, in his written responses to the court’s questionnaire to prospective jurors, stated he had a “very favorable” opinion of Black Lives Matter (BLM). When questioned about this response in voir dire by defense counsel Erik Nelson, Mitchell said, “Black lives just want to be treated as equals and not killed or treated in an aggressive manner simply because they’re Black” and that “Black Lives Matter” was “simply a statement of fact that he supported.”

On the questionnaire Mitchell also stated he had a neutral opinion about “Blue Lives Matter” about police officers. When questioned in voir dire by Nelson, Mitchell said he knew some police officers at his gym and that they were “great guys.”

Mitchell on the questionnaire also said  “no” to the question whether he or anyone close to him had “participated in protests about police use of force or police brutality.”

Another Mitchell statement on the questionnaire said he wanted to serve on the jury “because of all the protests and everything that has happened after the event [the Floyd killing], this is the most important case of my lifetime and I would love to be a part of it.”  Nelson, therefore,  asked, “How did the protests and things that have happened afterward have to do with  . . the facts and evidence in this case?” Mr. Mitchell responded: “Well there’s no correlation between the protest and the facts. The facts are the facts. There’s no correlation between these two things.”

Thereafter Nelson obviously did not seek to strike Mitchell as a juror.

Recently it became known via social media that Mitchell had attended a large rally on August 28, 2020, in Washington, D.C. to commemorate the 57th  anniversary of Martin Luther King’s famous “I Have a Dream” speech at the Lincoln Memorial. Some groups, including the NAACP, emphasized it was a way to recommit to King’s vision of racial equality while other groups tied ihe event to promote voter registration, police reform and justice for George Floyd.

The source of this information about Mitchell was a social media post containing a photo of him with two relatives in what appears to be a bar or restaurant the weekend of this event. He is wearing a T-shirt with an image of Dr. King, the logo “BLM” and “Get Your Knee Off Our Necks Commitment March.”

When questioned by journalists about this event, Mr. Mitchell said he attended because he had never been to Washington, D.C. and wanted to commemorate Dr. King. He also said he may have been given the t-shirt during the march, but does not specifically recall details.

Joseph Daly, a retired law professor at St. Paul’s Mitchell Hamline School of Law, thought Mr. Mitchell has been very forthright on a range of topics in his voire dire and that Nelson’s question about attending any anti-police rally was open to interpretation. Daly added, a prospective juror is “not going to confession. You just have to answer the questions you are asked.” Therefore, in Daly’s opinion, it was unlikely the court could find that Mitchell was lying on his response to that question.

Mary Moriarty, a former Chief Hennepin County Public Defender, thought Mitchell’s attendance at the event in Washington, D.C. did not make a difference. Given the evidence in the case, a court would be hard pressed to throw out the verdict. This view was shared by Melissa Murray, a law professor at New York University, who said although the attendance at the MLK event and the t-shirt were “not great, throwing out a jury verdict under these circumstances is probably a long shot.”

A similar opinion came from a New York criminal defense lawyer, Benjamin Brafman, who said, ”It’s been my experience that if you represent a really notorious individual in a trial that’s been watched by the entire world, you would have to have a really powerful confluence of legal issues for any appellate court to give it traction.”

Another Minnesota criminal defense attorney, Mike Padden, had a different view. He thought Mitchell in the voir dire should have disclosed his attendance at the MLK event and let the judge and the attorneys decide whether he should be on the jury.

Apparently the relevant legal precedent for this issue held that for a party to get a new trial, the party must show that the juror’s response on voir dire to a material question was dishonest and a correct response would have provided a valid basis for removal of the juror. (McDonough Poser Equip. v. Greenwood, 464U.S. 548 (1984).) https://www.washingtonpost.com/national/explainer-will-jurors-march-presence-impact-chauvin-case/2021/05/05/f2f70e84-addd-11eb-82c1-896aca955bb9_story.html

State’s Response to the Motions [5]

Chauvin’s four-page motion document asked for additional time to prepare and submit a thorough brief on these issues, and the State’s has not yet submit its detailed response to these motions. However, a spokesman for the Minnesota Attorney General’s Office stated, “The court has already rejected many of these arguments and the State will vigorously oppose them.”

Conclusion

The press reports about these defense motions, cited in footnote 1, contain the following opinions about the likely success of these motions .

Mike Brandt, a Minneapolis criminal defense attorney, said these requests are routine following a guilty verdict and often predict issues that will be raised on appeal, but that the convictions are unlikely to be overturned.

The previously mentioned Mary Moriarty said there wasn’t much new in the defense motion and that it lacked specificity. “You can see it’s very rushed and they actually asked for additional time to brief the issues.

It should also be noted that before or at the sentencing hearing in late June, the court has to rule on the prosecution’s pending motion for enhanced sentencing because of alleged aggravating circumstances. [6]

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[1] Defendant’s Notice of Motions and Post-Verdict Motions, State v. Chauvin, Court File No. 27-CR-20-12646 (Henn. Cty. Dist. Ct. May 4, 2021); Walsh, Derek Chauvin files for new trial, alleging prosecutorial and judicial misconduct, StarTribune (May 4, 2021); Xiong & Walsh, Chauvin files for new trial, alleging prosecutorial misconduct and judicial errors, StarTribune (May 5, 2021); Forliti (AP), Chauvin’s lawyer seeks new trial, hearing to impeach verdict, Wash. Post (May 4, 2021); Barrett & Winter, Derek Chauvin Seeks New Trial in George Floyd Case, W.S.J. (May 4, 2021); Eligon, Derek Chauvin’s Lawyer Asks for New Trial After Jury Verdict, N.Y. Times (May 4, 2021); Bailey, Derek Chauvin’s attorney files motion for a new trial, alleging misconduct by judge, prosecution and jurors, Wash. Post (May 4, 2021); Forliti (AP), EXPLAINER: Will juror’s march presence impact Chauvin case, Wash. Post (May 5, 2021). Details about the court’s previous rulings on these issues may be found in List of Posts to dwkcommentaries—Topical: George Floyd Killing.

[2] See n.1 supra; Minn. R. Crim. Pro. 26-04, subd. 1.

[3] See n. 1 supra; Minn. R. Crim. Pro. 26.03, subd. 20(6); Schwartz v. Minneapolis Suburban Bus Co., 104 N.W.2d 301 (Minn. Sup Ct. 1960).

[4] Forliti & Glass (AP), Chauvin juror: After intense trial, verdict was ‘easy part,’ StarTribune (April 28, 2021); Xiong, Chauvin juror hopes experience will lead to change, inspire others, StarTribune (April 28, 2021); AP, Juror talks of deliberations before finding Chauvin guilty, StarTribune (April 28, 2021); Beliware, First Chauvin juror to speak publicly recounts stress of coming to court to ‘watch a Black man die,’ Wash. Post (April 28, 2021);Xiong, Juror defends participation in March on Washington after social media post surfaces, StarTribune (May 4, 2021).

[5] See n. 1 supra.

[6] Xiong & Olson, Attorneys debate ‘aggravating factors ‘ in George Floyd murder, StarTribune (April 30, 2021); Forliti (AP), Prosecutors seek higher sentence for Chauvin in Floyd death, StarTribune (April 30, 2021); Bila, Chauvin’s ‘particular cruelty’ to George Floyd should mean harsher sentence, Minnesota attorney general argues, Wash. Post (May 1, 2021); AP, Chauvin sentencing in Floyd death pushed back to June 25, Wash. Post (April 27, 2021); State’s Memorandum of Law in Support of Blakely Aggregated Sentencing Factors, State v. Chauvin Henn. County Dist. Ct. No. 27-CR-20-12646 (April 30, 2021),; Defendant’s Memorandum of Law in Opposition to Upward Durational Sentencing Departure, State v. Chauvin Henn. County Dist. Ct. No. 27-CR-20-12646 (April 30, 2021).

 

Witnessing

Witnessing is an important human activity and responsibility.

Sometimes witnessing is a planned activity, like attending or watching and listening to a concert, play, movie, sporting event or a church worship service and then reporting (orally or in writing) what happened to others. Witnessing sometimes, however, is not planned beforehand when you observe something happening in your presence and subsequently tell others what you had observed.

Witnessing by Darnella Frazier [1]

An important example of the latter type of witnessing was provided by Darnella Frazier, a 17-year-old high school student, in Minneapolis at the corner of Chicago Avenue and 38th Street on May 25, 2020.

By happenstance she and her nine-year-old cousin walked from their home to the nearby Cup Foods store on that corner to buy some snacks. When they arrived at the store they noticed in the street a Minneapolis police car where a black man (George Floyd) was pinned in pain on the pavement by three Minneapolis policemen. Frazier immediately got out her cell phone and started a video recording of this event and then held her camera steady for over the next ten minutes until the Black man apparently died. She then  posted this video recording on her FACEBOOK page, which immediately was seen by many people around the world.

The next day in an interview by the StarTribune Frazier said she started the video recording ”as soon as I heard  . .  [the Black man] trying to fight for his life. It was like a natural instinct, honestly. The world needed to see what I was seeing. Stuff like this happens in silence too many times.” She hoped that the video can in some way bring about “peace and equality. We are tired of [police] killing us.” It was obvious to her that the officer had “seen how weak [Floyd] was, and he still proceeded. . . . My video proves what really happened.”

Frazier amplified her remarks in March 2021 FACEBOOK postings. “George Floyd was already cuffed on the ground, a knee to the neck when [the] restraint already is absolutely unnecessary. The man was begging for his life and Chauvin did not care. He deserves to go down.” Moreover, I can’t go to sleep in silence, my mind will eat me alive.” Frazier also criticized the falsity of the Minneapolis Police Department’s initial public report of this incident that stated the following:

  • “On Monday evening, shortly after 8:00 pm, officers from the Minneapolis Police Department responded to the 3700 block of Chicago Avenue South on a report of a forgery in progress.  Officers were advised that the suspect was sitting on top of a blue car and appeared to be under the influence.”
  • “Two officers arrived and located the suspect, a male believed to be in his 40s, in his car.  He was ordered to step from his car.  After he got out, he physically resisted officers.”
  • Officers were able to get the suspect into handcuffs and noted he appeared to be suffering medical distress.”
  • “Officers called for an ambulance.  He was transported to Hennepin County Medical Center by ambulance where he died a short time later.”
  • “At no time were weapons of any type used by anyone involved in this incident.”
  • “The Minnesota Bureau of Criminal Apprehension has been called in to investigate this incident at the request of the Minneapolis Police Department.”
  • “No officers were injured in the incident.”
  • “Body worn cameras were on and activated during this incident.”

At Chauvin’s recently concluded criminal trial, Frazier was the fourth witness called by the prosecution and provided moving and emotional testimony about what she observed and did that day. “When I look at George Floyd I look at my dad, I look at my brothers, I look at my cousins, my uncles, because they are all Black. I have a Black father, I have Black brothers, I have Black friends. I look at that and how it could have been one of them. It’s been nights I’ve stayed up apologizing and apologizing to George Floyd for not doing more and not physically interacting and not saving his life. It’s not what I should have done. It’s what he [Chauvin] should have done.” She also testified that Chauvin had a “cold look—heartless. It didn’t seem like he cared.”

In cross examination, defense counsel Erik Nelson was trying to fabricate a scene with bystanders becoming increasingly hostile to the point of creating a potential threat to the officers. Frazier agreed that bystanders were getting louder and angrier, but she added that she didn’t think anyone was ever threatening Chauvin.

After the jury on April 20th rendered its verdict that Chauvin was guilty on all three counts, Frazier said on FACEBOOK, “I just cried so hard. This last hour my heart was beating so fast, I was so anxious, anxiety [busting] through the roof. But to know GUILTY ON ALL 3 CHARGES !!! THANK YOU GOD THANK YOU … George Floyd we did it!! Justice has been served.”

Courage Award for Darnella Frazier [2]

Praise for Frazier’s actions at the scene of the Floyd killing actually started in October 2020, when PEN America, which works to defend and celebrate free expression in the United States and worldwide through the advancement of literature and human rights, announced that it was granting its annual Benenson Courage Award to Frazier. The announcement stated the following:

  • “In May 2020, Frazier documented the death of George Floyd at the hands of Minneapolis police officers, one of whom—Derek Chauvin—pressed his knee against Floyd’s neck, well after Floyd lost consciousness. Frazier’s video quickly spread across social media and led to a wave of community outrage, a major investigation, and Chauvin’s arrest, as well as the dismissal of [him and] the three other officers. Floyd’s killing, along with the deaths of Breonna Taylor, Ahmaud Arbery, Tony McDade, Dion Johnson, and others, drove a wave of activism across the country crying out for racial and economic justice.”

This award was presented at a virtual ceremony on December 8, 2020, by Spike Lee, the famous Oscar-winning film director. He said, “I’m so proud of my sister. She documented the murder of George Floyd, our brother, King Floyd. And that footage reverberated around this God’s earth, and people took to the streets all over this earth. Not just the United States of America, and it wasn’t just Black people either. Everybody took to the streets. My sister, I commend you, and you deserve  . . . the PEN/Benenson Courage Award. The [important] word is courage!”

Ms. Frazier accepted the Award with these comments: “ I would like to say thank you for honoring me with this PEN/Benenson Courage Award. I never would imagine out of my whole 17 years of living that this will be me. It’s just a lot to take in, but I couldn’t say thank you enough for everything that’s been coming towards me. Thanks to Mr. Lee for presenting this, and I appreciate that. Thank you for the PEN/Benenson Courage Award.”

Then followed thank you’s for her courage from attendees, including Meryl Streep, Anita Hill and U.S. Senator Cory Booker.

Other Praises for Frazier [3]

Many others have praised Frazier for her courage and quick-thinking on May 25th.

Her recording this video was praised at a June 11, 2020, press conference by Minneapolis Police chief Medaria Arradondo, “I am thankful, absolutely, that this [police encounter] was captured in the manner it was. [In similar situations, he encouraged others,]“Record, Record, absolutely. Record, call . . . a friend. Yell out. Call 911. We need a supervisor on the scene. Absolutely, we need to know that. So the community [should[ play a vital role and did two weeks ago.”

Chauvin’s conviction brought immediate praise for Frazier. Minnesota Governor Tim Walz said, Frazier’s taking “that video, I think many folks know, is maybe the only reason that Derek Chauvin will go to prison.” The NAACP in North Carolina, the state where Floyd was born. stated “The video shot by a high school student will go down in history. Not even many of Chauvin’s police colleagues, could argue against Ms. Frazier’s film.” Oprah Winfrey tweeted, “I’m grateful to the witnesses and their testimonies. Grateful to Darnella Frazier. Grateful to every juror for seeing and acknowledging what the world saw on that tape. Thank you God for real!”

Michelle Norris, a Washington Post columnist and a Minnesota native and graduate of the University of Minnesota, states Frazier “was the witness George Floyd needed on May 25, 2020. She was the witness we all needed—the public, the police, a country still grappling with racial codes that are stitched into the fabric of our governing institutions. She is the hero of this story.”

Norris continued, “Her bravery is a reminder that we too must not look away, and not just in the most wicked moments of bias but also in the small things that grease the runway toward larger prejudice. We must not look away when we see the softer kind of oppression that masks itself in offhand comments, and jokes, and the denigration and dismissal of ‘those people.’”

“And when I say ‘we,’ I am also talking about our public servants and especially our law enforcement officers who know too well that there are those in their ranks who ‘police’ from a dark and dangerous perspective. They know that some officers are guided by prejudice and proceed from warped beliefs. Those officers debase the entire profession.”

Conclusion

 Seven other bystanders to the killing of George Floyd testified in the Chauvin trial, including Judeah Reynolds, who is Frazier’s nine-year-old cousin. As Prosecutor Jerry Blackwell said in his closing argument, all of these bystander witnesses “were a bouquet  of humanity.”[4]

All of the bystanders testimony was  applauded by two prominent journalists. For Frank Bruni, the New York times columnist, these witnesses are “tormented by their memories of Floyd’s last minutes” and Floyd’s and their sense of “helplessness” of not being able to stop what was being done to Floyd. The Chicago Tribune’s columnist, Heidi Stevens, called these bystanders “stone catchers” or people who stand up and intervene when someone’s been wrongly accused and condemned. (This phrase is based upon Jesus rebuking men who were ready to stone to death a woman caught in adultery by asking them who is without sin to cast the first stone, which prompted all the men to drop their stones and walk away and upon Bryan Stevenson of the Equal Justice Initiative coining  the phrase “stone catchers.” [4]

This reference to the Bible should remind those of religious faith of our calling to be witnesses and give testimony. This is not easy. You have to give your account of what happened and your belief as to what it means. The person has to stand and say what he or she believes about God.

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

[1] Walsh, For first time, Minneapolis teen opens up about her viral George Floyd arrest video, StarTribune (Mar. 12, 2021); Minneapolis Police Department, Man Dies After Medical Incident During Police Interaction (May 25, 2020); Paybarah, How a teenager’s video upended the police department’s initial tale, N.Y. Times (April 20, 2021); Bogel-Burroughs & Arango, Darnella Frazier, the teenager who filmed George Floyd’s arrest, testifies at the trial, N.Y. Times (Mar. 30, 2021);  Assoc. Press, [Video] ‘He Was Suffering’: Teenager Who Filmed Floyd’s Arrest Testifies at Trial, N.Y. Times (Mar. 30, 2021); Watch the replays” Day 2 testimony of witnesses Donald Williams and Darnella Frazier, StarTribune (Mar. 30, 2021); Xiong, Walsh & Olson, Teen who recorded George Floyd’s death reveals trauma, pain in testimony, StarTribune (Mar. 31, 2021); Jackson, Derek Chauvin trial shows people who film police violence later struggle with trauma, StarTribune (April 2, 2021); Derek Chauvin Trial: Week Four, dwkcommentaries.com (April 4, 2021); Knowles & Belia, Darnella Frazier, teen who filmed Floyd’s arrest, celebrates Chauvin’s guilty verdict: ‘Justice has been served,’ Wash. Post (April 21, 2021); Yan, A teen with ‘a cell phone and sheer guts’ is credited for Derek Chauvin’s murder conviction, cnn.comm (April 21, 2021); Fowler, You have the right to film police. Here’s how to do it effectively—and safely, Wash. Post (April 22, 2021).

[2] See note 1 supra. See also Walsh, Minneapolis teen ‘humbled’ to receive national Courage Award for filming George Floyd’s killing by police, StarTribune (Oct. 29, 2020); PEN America, Darnella Frazier, Dec. 8, 2020); Walsh, Minneapolis teen receives prestigious award for recording George Floyd video, StarTribune (Dec. 10, 2020).

[3] Norris, Opinion: Darnella Frazier is the hero of this story, Wash. Post (April 21, 2021). This blog has frequently commented about Bryan Stevenson’s amazing legal representation of death-row inmates and others. See also Sullivan, By bearing witness—and hitting ‘record’—17-year-old Darnella Frazier may have changed the world, Wash. Post (April 20, 2021.).

[4] The other bystander witnesses were Alyssa Funaru (17 years old), Kaylynn Gilbert (17 years old), Genevieve Hansen, Donald Williams II, Christopher Belfrey and Charles McMillian. (Derek Chauvin Trial: Week Four, dwkcommentaries.com (April 4, 2021). Bruni, Listening to Those Who Saw George Floyd Die, N.Y. Times (April 24, 2021); Stevens, ‘The world needed to see what I was seeing,’ StarTribune (April 23, 2021)..

Department of Justice Starts Investigation of Minneapolis Police Department

On April 21 (the day after the Chauvin guilty verdict), U.S. Attorney General Merrick B. Garland announced that “the Justice Department has opened a pattern or practice investigation into the City of Minneapolis (the City) and the Minneapolis Police Department [MPD].”[1]

The Investigation Announcement

“The investigation will assess all types of force used by MPD officers, including uses of force involving individuals with behavioral health disabilities and uses of force against individuals engaged in activities protected by the First Amendment. The investigation will also assess whether MPD engages in discriminatory policing. As part of the investigation the Justice Department will conduct a comprehensive review of MPD policies, training and supervision. The department will also examine MPD’s systems of accountability, including complaint intake, investigation, review, disposition and discipline. The Department of Justice will also reach out to community groups and members of the public to learn about their experiences with MPD.”

According to the Attorney General, this investigation “will assess whether the [MPD] engages in a pattern or practice of using excessive force, including during protests. Building trust between community and law enforcement will take time and effort by all of us, but we undertake this task with determination and urgency, knowing that change cannot wait.”

“Like so many of you, I have closely watched the events in Minnesota. Although the state’s prosecution was successful, I know that nothing can fill the void that the loved ones of George Floyd have felt since his death. My heart goes out to them and to all those who have experienced similar loss.”

“I know such wounds have deep roots, and that too many communities have experienced those wounds firsthand. Yesterday’s verdict in the state criminal trial does not address potentially systemic policing issues in Minneapolis.”

“The Justice Department also has the authority to bring a civil lawsuit, asking a federal court to provide injunctive relief that orders the MPD to change its policies and practices to avoid further violations.”

“Most of our nation’s law enforcement officers do their difficult jobs honorably and lawfully.”

“I strongly believe that good officers do not want to work in systems that allow bad practices. Good officers welcome accountability because accountability is an essential part of building trust with the community, and public safety requires public trust.”

“I have been involved in the legal system, in one way or another, for most of my adult life. I know that justice is sometimes slow, sometimes elusive, and sometimes never comes. The Department of Justice will be unwavering in its pursuit of equal justice under law.” 

“The challenges we face are deeply woven into our history – they did not arise today or last year”

“Building trust between the community and law enforcement will take time and effort by all of us, but we undertake this task with determination and urgency, knowing that change cannot wait.”

Reactions [2]

Principal Deputy Assistant Attorney General Pamela S. Karlan, for the Department’s Civil Rights Division, said, “One of the Civil Rights Division’s highest priorities is to ensure that every person in this country benefits from public safety systems that are lawful, responsive, transparent and nondiscriminatory,” said  “It is essential that police departments across the country use their law enforcement authority, including the authority to use force, in a manner that respects civil rights and the sanctity of human life.”

According to W. Anders Folk, the Acting U.S. Attorney  for the District of Minnesota, “People throughout the city of Minneapolis want a public safety system that protects and serves all members of our community. This investigation by the Department of Justice provides a vital step to restore and build trust in the [MPD} and its officers.”

The New York Times pointed out that the Department would issue a  public report at the conclusion of the investigation. It also has the option to bring a civil suit against the MPD and enter into a settlement agreement, or consent decree, to ensure that prompt and effective action is taken to bring the department’s practices into compliance with the law.

More immediately, this investigation was welcomed in a StarTribune editorial and by Minneapolis Mayor Jacob Frey, Minneapolis Police Chief Arradondo and 12 of the 13 Minneapolis City Council members.

The StarTribune editorial said this investigation “is a welcome development in a city where mayors and police chiefs alike have struggled for years to effectively reform the department.” It also noted  that “MPD officers are seldom disciplined for their actions, well-protected by a powerful union. Chauvin had at least 16 prior complaints against him, only two of which drew reprimands. A recent Star Tribune analysis shows that for the department as a whole, only about 3% of misconduct complaints resulted in discipline.”

The Mayor said the City must seize on this “generational opportunity” to improve life for the Black community. Similar sentiments were voiced by Chief Arradondo, who pledged to “cooperate fully” with the investigation while saying , “The Chief has been insistent that he wants to make the MPD the best department possible.”

The 12 Council members stated they “fully support [this investigation in holding accountable] any and all abuses of power and harms to our community and stand ready to aid in this process as full partners.” They also said, “The City Council’s oversight of the Minnea[polis Police Department has been historically constrained by the City Charter and state law and we welcome new tools to pursue transformational, structural changes  to how the City provides for public safety.”

Minnesota’s two U.S. Senators, Amy Klobuchar and Tina Smith, issued a joint statement reminding everyone that they previously had “called for the Department of Justice to conduct an investigation into the patterns and practices of racially discriminatory policing in Minneapolis. We commend the Department of Justice’s decision to open this investigation, and we encourage them to coordinate with the ongoing investigation by the Minnesota Department of Human Rights. Through both of these efforts, we are hopeful to make meaningful progress. These investigations alone will not solve systemic issues, which is why we won’t stop fighting to pass police reform legislation to hold officers accountable for misconduct, increase transparency in policing practices, and ban dangerous police practices like chokeholds and no-knock warrants.”

Several activist groups had mixed responses:

  • Black Visions said, “The police investigating themselves will never result in needed changes to truly provide public safety to the people of Minneapolis and greater Minnesota. The MPD has shown the public  and community time and time again that they do not care about the safety of Black people or the larger community.”
  • Reclaim the Block said, “Minneapolis’ violent and murderous police department is built on the Obama Justice Department model of 21st century policing. We don’t expect real change to come out of the DOJ.”
  • Communities United Against Police Brutality said, “ We have been asking for DOJ assistance—since at least 2001. We have a toxic culture of police in this state, and not just in one department.”

Jared Fishman, a former federal civil rights prosecutor, called the announcement “hugely significant” and said it could signal that the Justice Department would once again use its considerable legal muscle to try to force police reforms. The Obama administration had opened 25 investigations into local law enforcement agencies and enforced 14 court-approved consent decrees mandating changes. Yet Fishman cautioned that the efficacy of such settlements can sometimes be stymied because local departments or prosecutors’ offices lack the resources or expertise to make the changes federal officials recommend.Fishman also noted that last week Attorney General Garland had rescinded a 2018 order by then Attorney General Jeff Sessions that aimed to drastically limit the use of such settlement agreements with local police agencies.

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

[1] Attorney General Merrick B. Garland Delivers Remarks at Announcement of Pattern or Practice Investigation into the Minneapolis Police Department (April 21, 2021); U.S. Dep’t Justice, PRESS RELEASE: Attorney General Merrick B. Garland Announces Investigation of the City of Minneapolis, Minnesota, and the Minneapolis Police Department (April 21, 2021); Benner, Attorney general Merrick Garland announces an investigation into the Minneapolis Police Department, N.Y. Times (April 21, 2021); Nakamura, Berman & Zapotonsky, Garland announces Justice Dept. probe into Minneapolis police, Walsh. Post (April 21, 2021), [2] See note 1 supra. See also Editorial, Justice Department probe is a critical next step, StarTribune (April 21, 2021); Press Release: Klobuchar, Smith Statement on Department of Justice Investigation into Minneapolis Police Practices (April 21, 2021); Mannix,  Justice Department to probe whether Minneapolis police have ‘pattern and practice’ of misconduct, StarTribune (April 22, 2021), ; Nakamura, Merrick Garland rolls back Trump-era restriction on forcing local police reforms, Wash. Post (April 16, 2021); Condon & Woodall, Advocates fear Minnesota, federal police reform efforts could lose momentum, StarTribune (April 22, 2021).

It should also be noted that shortly after the killing of George Floyd, the City of Minneapolis and the Minnesota Department of Human Rights entered into an agreement banning choke holds and neck restraints by the MPD. (See these posts to dwkcommentaries.com: Ban on Police Choke Holds and Neck Restraints in Agreement between City of Minneapolis and Minnesota Department of Human Rights (June 6, 2020); Court Approves Agreement on Police Conduct Between City of Minneapolis and Minnesota Department of Human Rights (June 9, 2020).

Derek Chauvin Trial: Week Seven (CONVICTION)

On Tuesday (April 20), the jury in Minnesota’s Hennepin County District Court returned its verdict in the Derek Chauvin criminal case: Guilty on all three counts (second degree murder, third-degree murder and second-degree manslaughter)! They did so after only about six  hours of deliberation.

In the courtroom, Chauvin’s bail immediately was revoked, and he was handcuffed and taken for his safety to administrative segregation (solitary confinement) at Oak Park Heights Prison until sentencing in June.

This verdict was hailed by individuals and groups around the U.S., including President Biden and former President Barack Obama.

Further details are provided in many newspaper articles., some of which are listed below.{1}

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

[1] Forliti, Karnowski & Webber (AP), Jury’s swift verdict for Chauvin in Floyd death: Guilty, StarTribune (April 21, 2021); https://www.startribune.com/jurys-swift-verdict-for-chauvin-in-floyd-death-guilty/600048350; Xiong & Walsh, Derek Chauvin, convicted of murdering George Floyd in Minneapolis, is led away in handcuffs, StarTribune (April 21, 2021), https://www.startribune.com/derek-chauvin-convicted-of-murdering-george-floyd-in-minneapolis-is-led-away-in-handcuffs/600048324; Arango, Dewan, Eligon & Bogel-Burroughs, Derek Chauvin is found guilty of murdering George Floyd, N.Y. Times (April 20, 2021); https://www.nytimes.com/2021/04/20/us/chauvin-guilty-murder-george-floyd.html?searchResultPosition=7; Walsh, Derek Chauvin is segregated from other inmates in state’s ‘most secure unit,’ StarTribune (April 21, 2021). https://www.startribune.com/derek-chauvin-is-segregated-from-other-inmates-in-state-s-most-secure-unit/600048467/. The elements of these three crimes are set forth in the court’s instructions to the jury. (Derek Chauvin Trial: Week Seven (Jury Instructions), dwkcommentaries.com (April 20, 2021), https://dwkcommentaries.com/2021/04/20/derek-chauvin-trial-week-seven-submission-to-jury.

Derek Chauvin Trial: Week Seven (Jury Instructions)

On Monday (April 19), Judge Cahill delivered instructions on the law to the jury, as discussed below. Then attorneys for the prosecution and Chauvin gave their closing arguments, which will be discussed in a subsequent post, while we and millions of people await the jury’s verdict.

The Jury Instructions are contained in a 14-page document: single-spaced (with extra space between paragraphs and headings). The following contains the headings with occasional portions of the actual text and without the details on subjects in brackets and without the instructions after the closing arguments of the parties.[1]

[Duties of Judge and Jury]

[Instructions To Be Considered as a Whole]

[Presumption of Innocence]

Proof Beyond a Reasonable Doubt

Proof beyond a reasonable doubt is such proof as ordinarily prudent men and women would act upon in their most important affairs. A reasonable doubt is a doubt based upon reason and common sense. It does not mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt

[Direct and Circumstantial Evidence]

[Statements of Judge and Attorneys]

[Multiple Charges to be Considered Separately]

[Definitions of Words and Phrases]

COUNT I

The defendant is charged in Count I with Murder in the Second Degree in connection with the death of George Floyd.

Definition

Under Minnesota law, a person causing the death of another person, without intent to cause the death of any person, while committing or attempting to commit a felony offense is guilty of the crime of Murder in the Second Degree. (Emphasis added.)

Elements

The elements of the crime of Murder in the Second Degree while committing a felony are:

First Element: The death of George Floyd must be proven.

Second Element: The Defendant caused the death of George Floyd. (Emphasis in original.)

Third Element: The Defendant, at the time of causing the death of George Floyd, was committing or attempting to commit the felony offense of Assault in the Third Degree. It is not necessary for the State to prove the Defendant has an intent to kill George Floyd, but it must prove that the Defendant committed or attempted to commit the underlying felony of Assault in the Third Degree. (Emphases in original.)

There are two elements of Assault in the Third Degree:

(1) Defendant assaulted George Floyd.

“Assault “ is the intentional infliction of bodily harm upon another or the attempt to inflict bodily harm upon another. The intentional infliction of bodily harm requires proof that the Defendant intentionally applied unlawful force to another person without that person’s consent and that this act resulted in bodily harm. (Emphases in original.)

  • Defendant inflicted substantial bodily harm upon George Floyd. It is not necessary for the State to prove that the Defendant intended to inflict substantial bodily harm, or knew that his actions would inflict substantial bodily harm, only that the Defendant intended to commit the assault and that George Floyd sustained substantial bodily harm as a result of the assault. (Emphases in original.)

Fourth Element:. The Defendant’s act took place on or about May 25, 2020 in Hennepin County.

If you find that each of these elements has been proved beyond a reasonable doubt, the Defendant is guilty of this charge. If you find that any of these elements has not been proven beyond a reasonable doubt, the Defendant is not guilty of this charge, unless you find that the Defendant is liable for this crime committed by another person or persons according to the instruction below on page 8 under the heading ”Liability for Crimes of Another.”

Count II

The Defendant is charged in Count II with Murder in the Third Degree in connection with the death of George Floyd.   

Definition

Under Minnesota law, a person causing the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, but without intent to cause the death of any person, is guilty of Murder in the Third Degree. (Emphasis added.)

Elements

The elements of the crime of Murder in the Third Degree are:

First Element: The death of George Floyd must be proven.

Second Element: The Defendant caused the death of George Floyd. (Emphasis in original.)

Third Element: The defendant caused the death of George Floyd by an intentional act that was eminently dangerous to other persons. A person commits an act eminently dangerous to others when the act is highly likely to cause death.(Emphases in original.)

Fourth Element: Defendant acted with a mental state consisting of reckless disregard for human life. The Defendant’s act may not have been specifically intended to cause death, and may not have been specifically directed at the particular person whose death occurred, but it must have been committed with a conscious indifference to the loss of life that the eminently dangerous act could cause. (Emphases in original.)

Fifth Element: The Defendant’s act took place on or about May 25, 2020 in Hennepin County.

If you find that each of these elements has been proven beyond a reasonable doubt, the defendant is guilty of this charge. If you find that any of these elements has not been proven beyond a reasonable doubt, the Defendant is not guilty of this charge, unless you find that the State has proven beyond a reasonable doubt that the Defendant is liable for this crime committed by another person or persons according to the instruction below on page 8 under the heading “Liability for Crimes of Another.”

COUNT III

The Defendant is charged in Count III with Manslaughter in the Second Degree in connection with the death of George Floyd.

Definition

Under Minnesota law, whoever, by culpable negligence, whereby he creates an unreasonable risk and consciously takes the chance of causing death or great bodily harm to another person, causes the death of another is guilty of Manslaughter in the Second Degree.

The Defendant is charged with committing this crime or intentionally aiding the commission of this crime.

Elements

The elements of Manslaughter in the Second Degree are:

First Element: The death of George Floyd must be proven.

Second Element: The Defendant caused the death of George Floyd, by culpable negligence, whereby the Defendant created an unreasonable risk and consciously took a change of Causing death or great bodily harm. “Culpable negligence” is intentional conduct that the Defendant may not have intended to be harmful but that an ordinary and reasonable prudent person would recognize as involving a strong probability of injury to others. (Emphases in original.)

Third Element: The Defendant’s act took place on or about May 25, 2020 in Hennepin County.

If you find that each of these elements has been proven beyond a reasonable doubt, the defendant is guilty of this charge. If you find that any of these elements has not been proven beyond a reasonable doubt, the Defendant is not guilty of this charge, unless you find that the State has proven beyond a reasonable doubt that the Defendant is liable for this crime committed by another person or persons according to the instruction below on page 8 under the heading “Liability for Crimes of Another.”

[LIABILITY FOR CRIMES OF ANOTHER]

Defense: Authorized Use of Force by a Police Officer

No crime is committed if a police officer’s actions were justified by the police officer’s use of reasonable force in the line of duty in effecting a lawful arrest or preventing an escape from custody. (Emphases in original.)

The kind and degree of force a police officer may lawfully use in executing his duties is limited by what a reasonable police officer in the same situation would believe to be necessary. Any use of force beyond that is not reasonable. To determine if the actions of the police officer were reasonable, you must look at those facts which a reasonable officer in the same situation would have known at the precise moment the officer acted with force. You must decide whether the officer’s actions were objectively reasonable in light of the totality of the facts and circumstances confronting the officer and without regard to the officer’s own subjective state of mind, intentions, or motivations. (Emphases in original.)

The Defendant is not guilty of a crime if he used force as authorized by law.

To prove guilt, the State must prove beyond a reasonable doubt  that the Defendant’s use of force was not authorized by law.

[Evaluation of Testimony—Believability of Witnesses]

[Expert Testimony]

Defendant’s Right Not to Testify

The State must convince you by evidence beyond a reasonable doubt that the Defendant is guilty of the crime charged. The Defendant has no obligation to prove his innocence. The Defendant has the right not to testify. This right is guaranteed by the federal and state constitutions. You should not draw any inference from the fact that the Defendant has not testified in this case.

[Impeachment]

Evidence of Other Occurrences Involving George Floyd

You have heard evidence of an occurrence involving George Floyd on May 6, 2019. As I told you at the time this evidence was offered, it was admitted solely for the limited purpose of showing what effects the ingestion of opioids may or may not have had on the physical wellbeing of George Floyd. this evidence is not to be used as evidence of the character of George Floyd.

[Demonstrative Evidence]

[Definition of Words]

[Rulings on Objections to Evidence]

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

[1] District Court, Jury Instructions, https://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12646/JuryInstructions04192021.pdf; Read the judge’s instructions to the jury in the Derek Chauvin murder trial, StarTribune (April 19, 2021);  https://www.startribune.com/read-the-judges-instructions-for-the-jury-in-the-derek-chauvin-murder-trial/600047788; Read: Judge’s instructions to Derek Chauvin trial jurors, Wash. Post (April 19, 2021), https://www.washingtonpost.com/context/read-judge-s-instructions-to-derek-chauvin-trial-jurors/5b3517cb-bfa2-4dad-957e-11acfb2783f2/.

Derek Chauvin Trial: Week Six (Defense Case)

Tuesday (April 13) of Week Six turned to the presentation of the defense’s case, after the testimony of the prosecution’s final three witnesses on April 12. [1] The defense then called seven witnesses on Wednesday (April 14) while Thursday (April 15) saw the end of the evidentiary phase of the trial. First, however, we will examine rulings and comments by Judge Cahill.

Judge Cahill’s Rulings and Comments[2]

Wednesday’s trial started with the Judge granting a motion by Morris L. Hall, to quash a defense subpoena for him to testify in the trial on the ground that such testimony would infringe his Fifth Amendment privilege against self-incrimination. The Judge said, “I’m finding that he has a complete Fifth Amendment privilege.”

The Judge then denied the defense’s motion for an acquittal on the grounds that the State allegedly had failed to prove whether there was a use of force and whether any such force was unreasonable and caused Floyd’s death.

The Judge ordered the jury to consider the testimony of two defense witnesses (Creighton and Moseng on what impact “the ingestion of opioids may or may not have on the physical well-being of George Floyd, not on his character.”

At the end of Tuesday’s proceedings, the Judge told the jury that the defense was expected to finish its case by this Thursday, that the Court probably would not be in session this Friday and that closing arguments probably would happen next Monday after which the jury would be sequestered for their deliberations. “So next Monday pack a bag and bring it to court.”

Defense Witnesses [3]

1. Scott Creighton( (Retired MPD officer). He was involved in a May 2019 traffic stop of George Floyd in Minneapolis and testified, with the aid of his body cam video, that  Floyd “was unresponsive and noncompliant to my commands [to show his hands] in the car he was driving. Creighton, therefore, pointed his gun at Floyd and “reached [into the car] to  grab his hand and put it up on the dash.”  In response, Floyd said, ”Don’t shoot me man.” Then “that individual [Floyd] was taken from the vehicle and handcuffed. In my mind, his behavior was very nervous and anxious.”

On cross-examination, Creighton admitted that he had given conflicting commands on where Floyd should put his hands in the car and that after Floyd was out of the car he was coherent and cooperative. It also should be noted that Floyd was not charged with any crime on that occasion.

2. Michelle Moseng (retired Hennepin County Medical Center (HCMC) paramedic). At the time of the May 2019 encounter, she tended to Floyd in the Police Department’s Fourth Precinct in north Minneapolis. He had “extremely high” blood pressure, and he said he “has a history of hypertension and hadn’t been taking his medication,” but that day had been taking multiple opioid pills every 20 minutes because he was addicted. She wanted him to go to a hospital because she thought he was at risk of a stroke, but he refused.

Under cross examination by the prosecution, she admitted that Floyd “was alert, obeying commands and his respiration and pulse rates were normal.” Nor did he have a stroke or stop breathing while he was with her.

3. Shawanda Hill (a young Black woman).  On the morning of May 25, 2020, at Cup Foods she happened to run into George Floyd, an acquaintance, who appeared to be normal, talking and alert. He offered her a ride home in his car, but soon after they were in his car, ”he fell asleep.”

When Cup Foods employees came to the car to ask about the $20 bill Floyd had used in the store, “they were trying to wake him up over and over, but Floyd just said something, made a little gesture and nodded back off.” Floyd told her “he was tired because he had been working.”

Later a police officer arrived at the car with a drawn gun and demanded that Floyd put his hands on the dash. She woke up Floyd and told him, “Baby, that’s the police. It’s about the $20 bill that wasn’t real. Roll down the window.” Floyd immediately rolled down the window, grabbed the steering wheel and said, “Please, please don’t shoot me.”  Floyd appeared to be “very” startled, but she saw nothing to indicate he was having any health problems such as shortness of breath or chest pains.

4. Peter Chang (Minneapolis Park Police officer). On May 25, 2020, he was stationed at a nearby park, but came to the scene in response to a call for assistance. He then commented on portions of his bodycam video. When he arrived, Floyd was handcuffed and sitting on the sidewalk [next to the brick wall of an Asian restaurant across 38th Street from Cup Foods.]

At the request of one of the four officers already at the scene, Chang used his squad car computer to find information about Floyd. Chang stayed by Floyd’s car and talked with two people who had been in the car, the previously mentioned Shawanda Hill and Morris Hall. As they watched what was happening across the street, Hall said, “Something’s going on. They’re taking pictures over there. Everybody’s recording this shit, man.”

When the ambulance arrived at the scene, Hall said, “Can I just see what y’all did to him? He on the ground and everything? Oh my God.” One of the bystanders, Mr. McMillian, came across the street to see these two Black people and told them they needed to call Floyd’s family.

Under cross examination, Chang said his focus remained on Floyd’s car and the two Black people there because he assumed the four officers (Chauvin and the other three) were OK.They had never radioed for help.

5. Nicole Mackenzie (MPD Medical Support Coordinator). She testified about “excited delirium,” a syndrome in  dispute among health professionals, but taught to MPD police cadets. She said that the MPD training asserts that this syndrome leads to psychotic behavior , agitation, incoherent speech, superhuman strength and hyperthermia. Cadets are trained to have an ambulance at a safe distance in such situations because a suspect “can rapidly go into cardiac arrest.”

She also testified that the MPD training on “excited delirium” emphasizes putting the suspect in the side recover position and rendering CPR assistance. Judge Cahill, however, told the jury there was no evidence that Chauvin had had this training and, therefore, this testimony was not relevant to his state-of-mind on May 25, 2020. [4]

6. Barry Brodd (Retired police officer and use-of-force expert). He testified for the defense, “I felt that Derek Chauvin was justified and acting with objective reasonableness following Minneapolis Police Department policy and current standards of law enforcement in his interactions with Mr. Floyd.”

When asked about his opinion, Brodd brought up a scenario he taught at the academy referring to a domestic violence incident where an individual is Tased, falls to ground and strikes his head. That’s not deadly force, that’s an accidental death, Brodd contended.

Brodd, who for served 22 years in the Santa Rosa Police Department before his retirement in 2004, said it’s important for anyone “to try to see it as the officer on the scene … then try to put yourself in the officer’s shoes. It’s easy to sit in an office and judge an officer’s conduct.”

Brodd testified that police used force in attempting to get Floyd in the squad and getting him to the ground, but once Floyd was on the ground, Brodd said he didn’t believe the “prone control” position was use of force.

Brodd also said police officers must always keep their head on a swivel and engage in “one upsmanship,” meaning officers do not always have to fight fair. “They’re allowed to overcome your resistance by going up a level to gain control.”

He asserted that the prone position was not dangerous and unlikely to cause “pain” for restrained suspects. With respect to Floyd, “there were space limitations; Mr. Floyd was butted up against the tire of the patrol car. There was traffic still driving down the street. There were crowd issues that took the attention of the officers. Mr. Floyd was still somewhat resisting. I think there were valid reasons to keep him in the prone.

Brodd also claimed that the prone position could be viewed as “safer” for suspects potentially on drugs because it was a method of control should someone suddenly exhibit “erratic behavior going from compliant to noncompliant, not feeling any pain, potentially having superhuman strength.”

7. Dr. David Fowler (Former Maryland Chief Medical Examiner and use-of-force expert). In his opinion, Floyd died of a cardiac arrhythmia due to heart disease with contributing factors, including fentanyl. He also said, in his opinion, that Chauvin’s knee did not impact the vital structures of Floyd’s neck, that there was no research evidence suggesting that the prone position is an issue in restricting air and that carbon monoxide poisoning from the police car may have contributed to his death. Other factors Fowler mentioned were Floyd’s high blood pressure (216/160) which “could be due to his hypertension being out of control, his exposure to vehicle exhaust from the adjacent patrol car, his tumors near the carotid artery and nerve pathways. As a result, he would have classified the cause of death as undetermined due to these multiple factors.

On cross examination, Fowler admitted that there were no data showing Floyd had any injury from carbon monoxide and no evidence the squad car was running, that he did not identify the time of death, that Floyd showed no signs of overdoses such as sleepiness, that 90 percent of tumors called paraganglioma do not secret adrenaline (contrary to his direct testimony), that Fowler was not claiming that Floyd died from such tumors and that he had never said the white object observable in Floyd’s mouth was a pill of any kind.

On cross examination, Dr. Fowler also admitted he erroneously had claimed that another medical expert who had criticized holding someone in a prone position had reversed that position.

Fowler also agreed that Chauvin and the other three officers were negligent in failing to provide immediate lifesaving measures to Floyd once he lacked a pulse. at roughly five of the over nine minutes he was restrained, and Fowler is critical of that failure by the officers.

Closing of Defense Case [5]

On Thursday (April 15), outside the presence of the jury, Mr. Chauvin announced that he invokes his Fifth Amendment right not to testify and then responded to  questions about that decision from his attorney, Erik Nelson: the two of them have had many conversations about whether he would testify, including as recently as the prior night; that Chauvin testified, the state would have broad latitude in its cross examination; and that he understood that any decision to testify was his alone and neither the state nor the court can equate silence with guilt. Judge Cahill then asked whether this was his decision, and he said, “It is, your Honor.”

The Judge also  said, “If he [Tobin] even hints at test results the jury has not heard about, it’s gonna be a mistrial, pure and simple.”                

The defense then rested on their case in chief.

Prosecution’s Rebuttal [6]

Jerry Blackwell for the prosecution told the court he intended  to recall Dr.Tobin to testify about the “very small” carbon monoxide levels in Mr. Floyd’s blood, an issue made relevant by the testimony of the defense expert, Dr. Fowler. Defense counsel, Erik Nelson, however, objected to this new evidence in rebuttal.

Judge Cahill agreed with this objection because he claimed the prosecution months ago knew that Dr. Fowler would testify about carbon monoxide and allowing such evidence in rebuttal would prejudice the defense because Dr.Fowler already had left Minnesota . However, the judge said that Dr. Tobin could testify about how carbon monoxide could have affected Floyd, but could not mention the actual amount of that chemical in his blood. The Judge also said, “If he [Tobin] even hints at test results the jury has not heard about, it’s gonna be a mistrial, pure and simple.”

The prosecution then called Dr. Tobin for brief testimony within those constraints.

Then the prosecution rested its case.

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[1] See Derek Chauvin Trial: Week Six (Ending of Prosecution Case), dwkcommentaries.com (April 13, 2021).

[2] Walsh, The state rests.’ Now the defense starts its case in the Derek Chauvin murder trial, StarTribune (April 13, 2021); Walsh, ‘Baby, that’s the police:’ Woman in SUV with George Floyd testifies she woke him up when cop was at window with gun drawn, StarTribune (April 13, 2021); Walsh, Simons & Sayle, What happened Tuesday in the Derek Chauvin trial, StarTribune (April 13, 2021); Walsh, Defense expert says Derek Chauvin ‘was justified’ in his actions before George Floyd died, StarTribune (April 13, 2021); Bailey, Derek Chauvin’s defense opens with focus on George Floyd’s drug use, rebuttal testimony on use of force, Wash. Post (April 13, 2021); Xiong, Walsh & Olson, Derek Chauvin’s actions were justified and reasonable, defense expert testifies, StarTribune (April 14, 2021): Walsh, Defense will resume today arguing that Derek Chauvin did not kill George Floyd, Star Tribune (April 14, 2021); Forliti, Karnowski & Webber(AP), Judge refuses request to acquit Chauvin in Floyd’s death, Wash. Post (April 14, 2021); Karnowski & Tarm, EXPLAINER: Reluctant witness won’t testify in Chauvin trial, Wash. Post (April 14, 2021); Bella & Iati, Live Updates: At Chauvin’s trial, defense’s medical expert says officer’s kneeling on George Floyd’s neck did not injure him, Wash. Post (April 14, 2021); Walsh, Defense witness: Due to multiple factors, manner of George Floyd’s death ‘undetermined,’ StarTribune (April 14, 2021); Bella, Iati, Kornfield & Knowles, Live updates: At Chauvin’s trial, defense medical expert say’s officer’s kneeling on George Floyd’s neck did not injure him, Wash. Post (April 14, 2021); Walsh, Simons & Sayle, What happened Wednesday in the Derek Chauvin trial, StarTribune (April 14, 2021; .Xioong, Walsh & Olson, Cardiac arrest and drugs, not lack of oxygen, caused Floyd’s death, defense expert says, StarTribune (April 15, 2021).

[3] See fn. 2 supra.

[4] Mackenzie previously had testified for the prosecution. See Derek Chauvin Trial: Week Five, dwkcommentaries.com (April 10, 2021).

[5] Walsh, Derek Chauvin tells court he will not testify in his murder trial, StarTribune (April 15, 2021); Belia & Bellware, Chauvin declines to testify, invoking his Fifth Amendment right as defense rests its case, Wash. Post (April 15, 2021); Walsh, Simons & Sayle, What happened Thursday in the Derek Chauvin trial, StarTribune (April 15, 2021); Tompkins, Derek Chauvin declines to testify, N.Y. Times (April 15, 2021).

[7] See fn. 6 supra.

[8] Belia, Derek Chauvin tells court he will not testify in his murder trial, Wash. Post (April 15, 2021); Beila, Coroner who performed Floyd’s autopsy called to dispute defense expert’s carbon monoxide claim, prosecutor says, Wash. Post (April 15, 2021); Walsh, Derek Chauvin tells court he will not testify at his murder trial, StarTribune (April 15, 2021);Tompkins, Derek Chauvin declines to testify, N.Y. Times (April 15, 2021).

Derek Chauvin Trail: Week Six (Ending of Prosecution Case)

The testimony of the prosecution’s final three witnesses and Judge Cahill’s rulings on several issues occupied the first day (April 12) of the trial’s Week Six.[1] This was after Week Four’s opening statements and testimony from 19 prosecution witnesses and Week Five’s 16 prosecution witnesses. [2] Thereafter the defense started presentation of its case, which will be discussed in a subsequent post.

Prosecution Witnesses [3]

36. Dr. Jonathan Rich (Associate Professor, Northwestern Memorial Hospital, Chicago and Cardiology Expert). He testified that in his opinion, “Floyd’s cause of death was cardiopulmonary arrest caused by low oxygen levels that “were induced by the prone restraint and positional asphyxia” from the officers’ restraint. The low oxygen sent him into cardiopulmonary arrest “much more slowly and gradually . . . . His speech [was] starting to become less forceful . . . until his speech became absent and his  muscle movements were absent.”

Moreover, Dr.  Rich testified, “I believe that Mr. George Floyd’s death was absolutely preventable.”  He also pointed out the following moments when Floyd’s death could have been prevented: (1) when one of the officers said, “I think he is passing out;” (2) when one of the officers twice suggested that Floyd be turned over; and (3) when one of the officers said Floyd no longer had a pulse. Chauvin rejected all of those suggestions, but if they had been accepted, Floyd could have been released from the restraint and CPR started.

Dr. Rich also testified, “I can state with a high degree of medical certainty that George Floyd did not die from a primary cardiac event and he did not die from a drug overdose.”

37. Philonise Floyd (George Floyd’s brother). He talked about how the two of them played video games and basketball together as children. When he looked at a photo of George as a toddler sleeping in the arms of their mother, the brother began to cry while saying he was “a big mama’s boy.”  Their mother died in 2018, and at her funeral, George sat at the coffin saying “Mom, Mom” over and over.

George was a talented athlete, marking his height on the wall, wanting to be taller to have an edge in sports. “He always wanted to be the best.He was excellent in football and basketball and won a scholarship to attend college in Florida. George made snacks for his younger siblings although he couldn’t cook. He was a person everyone loved. He just knew how to make people feel better.”

This testimony was permissible under a 1985 Minnesota Supreme Court decision allowing prosecutors to present evidence that a murder victim was “not just bones and sinews covered with flesh, but was imbued with the spark of life.”

The defense did not cross-examine Philonise.

38. Seth W. Stoughton (University of South Carolina Schol of Law; use-of-force expert). He said that the officers severely mishandled the arrest of Mr. Floyd at nearly every level. The prone position is meant to be a temporary position, typically used to apply handcuffs to a suspect, not the nine and a half minutes used on Floyd. The dangers of the prone position—making it more difficult for a suspect to breathe, particularly with extra weight on their back or neck—“have been well known in policing for decades.”

Stoughton concluded that “no reasonable officer would have believed that [kneeling on the prone body of Mr. Floyd] was an appropriate, acceptable or reasonable use of force;” that “there’s no specific and articulable facts that . . . a reasonable officer in the defendant’s position, could use to conclude that [Floyd] had the intention of causing physical harm to the officers or others;”and that “a reasonable officer would not have viewed the bystanders as a threat.”

Judge Cahill’s Rulings

At the start of the hearing, defense counsel Erik Nelson asked the court immediately to sequester the jurors and ask them whether they had learned about the civil unrest in Brooklyn Center in response to the police killing of a black man in that city and to order the jurors to avoid all news media. Prosecution counsel opposed both requests and Judge Cahill immediately denied same.

Also at the start of the hearing Mr. Nelson asked the court to deny the prosecution’s calling another witness (Dr.Stoughton)  about Chauvin’s use of force, especially  with another showing of the full video of Floyd’s restraint. After the prosecution said it would not be showing this witness the entire video, Judge Cahill ruled that Dr. Stoughton may testify, but only about national use of force standards and about the impact of bystanders on Chauvin’s actions.

Another issue raised before testimony was whether the defense may call Morries L. Hall, but that issue has not yet been resolved.

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[1]  This summary of Week Six is based upon watching some of the livestreaming of the trial and the following reports: Walsh, 3rd Week of testimony in Derek Chauvin trial has begun with medical expert, StarTribune (April 11, 2021); Walsh, Medical expert opened 3rd week of Chauvin trial testimony: George Floyd’s death ‘absolutely preventable,’ StarTribune (April 11, 2021); Barrett, George Floyd Could Have Survived if Restraint Eased, Cardiologist Jonathan Rich Testifies, W.S.J. (April 11, 2021); Kornfield, Hauslohner & McMilian, Live Updates: Cardiologist testifies that Derek Chauvin’s acts—not drugs or a heart condition—caused George Floyd’s death, Wash. Post (April 12, 2021); Wright, Takeaways from Day 11 of the Derek Chauvin Trial, N.Y.Times (April 12, 2021); Walsh, Brother breaks down telling jurors in Derek Chauvin murder trial of George Floyd’s love for their mother, StarTribune (April 12, 2021); Karnowski (AP), EXPLAINER: Prosecution explores Floyd’s ‘spark of life,’ StarTribune (April 12, 2021); Walsh, Simons & Sayle, What Happened Monday in the Derek Chauvin trial, StarTribune (April 12, 2021); Forliti, Karnowski & Webber (AP), Expert: Chauvin did not take action of ‘reasonable officer,’ Wash. Post (April 12, 2021); Kornfield, Hauslohner & McMilian, Live Updates: Cardiologist testifes that Derek Chauvin’s acts—not drugs or a heart condition—caused George Floyd’s death, Wash. Post (April 12, 2021).

[2] See these posts to dwkcommentaries.com: Derek Chauvin Trial: Week Four (April 2, 2021); Derek Chauvin Trial: Week Four (Commentaries) (April 5, 2021); Derek Chauvin Trial: Week Four (Sources) (April 6, 2021); Derek Chauvin Trial: Week Five (April 10, 2021); Derek Chauvin Trial: Week Five (Commentaries) (April 11, 2021); Derek Chauvin Trial: Week Five (Sources) (April 12, 2021).