Final Preparations for  Federal Criminal Trial Over Killing of George Floyd 

On January 20 and 21, 2022, U.S. District Court for the District of Minnesota’s Judge Paul Magnuson conducted the final hearings before the criminal trial of three former Minneapolis police officers (Thomas Lane, J. Alexander Kueng and Tou Thao) over their allegedly depriving George Floyd of his liberty without due process and failed to provide the medical attention he so obviously needed.

Jury Selection[1]

In the first day, a jury of 12 Minnesota citizens were chosen as jurors along with six others as alternates from a pool of 67. Of the 12 set to decide the case, five are white men, six are white women and one appeared to be an Asian woman. Of the alternates, three are white women, two are white men and one appeared to be an Asian man. The only black man in the jury pool said he could not be fair and was excused.

Among the 12 main jurors, three are from Hennepin County, two each from Ramsey and Washington Counties and one each from Anoka, Blue Earth, Olmstead, Jackson and Scott Counties. Two of the  alternates are from Ramsey County while the others come from Anoka, Hennepin, Nicollet and Olmstead Counties.

All of this was accomplished in only one day because Judge Magnuson conducted all of the questioning of the jury candidates and ruled on objections by counsel for the parties. The Judge started with general statements and questions, including whether the prospective jurors could be fair, impartial and believed in the presumption of innocence. He advised them that Chauvin’s convictions had nothing to do with the guilt or innocence of the three defendants, saying their actions were “totally separate.” The Judge also advised the potential jurors that community difficulties and “anarchy in the streets” may have an impact, but “fear cannot control in a courtroom” and that the case has “unequivocally nothing to do with race … religion … or national origin.”

Cancelled Hearing on Other Issues[2]

On January 21, the Court had planned a closed hearing on defense objections to some of the prosecution’s proposed evidence, including still images from the videos of the May 25, 2020 killing of Mr. Floyd, side-by-side exhibits that will play two videos at once and dispatch and 911 calls.

But after the prosecution and the Media Coalition objected to the closing of the hearing, the Judge cancelled the hearing.

The Judge also  increased the seats in the courtroom for journalists from two to four.

Conclusion [3]

On Monday (January 24), the trial is scheduled to commence with the attorneys’ opening statements.

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[1] Mannix, Federal Trial for 3 ex-officers in George Floyd death will differ from Derek Chauvin’s state trial, StarTribune (1/20/22); Olson & Xiong, Jury is seated in federal trial for the other officers in George Floyd death, StarTribune (1/20/22);  Bailey, Another trial in the killing of George Floyd for other officers at the scene, Wash. Post (1/20/22).

[2] Karnowski & Forliti (AP), Access again an issue at federal trial in Floyd’s killing, StarTribune (1/21/22).

[3] Mannix & DeLong, What you need to know about the federal trial of three ex-Minneapolis police officers in George Floyd’s death, StarTribune (1/21/22). See also posts listed in the “Federal Criminal Cases Against Ex-Minneapolis Policemen Over the Killing of George Floyd and Against Derek Chauvin Over Excess Force Against Teenager” section of List of Posts to dwkcommentaries—Topical: George Floyd Killing.

Other Orders Regarding Upcoming Federal Criminal Trial Over Killing of George Floyd

As discussed in a prior post, on January 11, U.S. District Court Judge Paul Magnuson held a pretrial hearing in the federal criminal case against three ex-Minneapolis policemen over the killing of George Floyd and issued an order regarding certain issues.

The next day, the Government submitted a motion to clarify or reconsider two  of those rulings: (1) possible precluding one of the Government’s medical experts and (2) precluding a witness who was nine-years old on the date of Mr. Floyd’s encounter with the police and his death (May 25, 2020). Another motion regarding [1]

On January 14, Judge Magnuson issued an Order on the Government’s motion. First, it denied the motion for reconsideration of the refusal to allow the testimony of the young witness. Second, it granted the motion to clarify the ruling regarding the medical experts by saying, “the Court did not preclude the Government from offering multiple medical experts, but rather only ordered the Government  to ensure that its medical evidence was not cumulative. The Government has supplied the Court with information about three medical experts it intends to call as witnesses, and the testimony of these experts is not cumulative. The government may propound these witnesses, subject to other objections Defendants may raise.” [2]

The Court also on January 14 issued another order regarding the Government’s motions regarding defendants’ proposed evidence. It ruled inadmissible the reports of defense police-practices and use-of-force experts (Greg Meyer and Steve Ijames) on the ground that these reports “are replete with legal conclusions, attempts to introduce hearsay, and make improper determinations of fact and witness credibility.” However, these experts will be permitted to testify because “they clearly are [qualified]” and their “testimony … in that regard will assist the jury. But should either of these experts attempt to testify regarding matters that are inadmissible or improper, the Government may object.” [3]

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[1] Government’s Motion To Clarify or Reconsider Certain Pretrial Rulings, U.S. v. Thao, et al., Criminal No. 21-108 (D. Minn. 01/12/22).

[2] Order, U.S. v. Thao, et al., Criminal No. 21-108 (D. Minn. 01/14/22).

[3] Order, U.S. v. Thao, et al., Criminal No. 21-108 (D. Minn. 01/14/22).

 

 

Media Coalition Asks for Open Court Room in Federal Criminal Case Against Ex-Cops Over Killing of George Floyd

On January 14, 2022, the Media Coalition of newspapers and other media filed a letter with the court requesting U.S. District Judge Paul Magnuson to invalidate his limitations on public access to the courtroom where on January 20, the court will start the criminal trial of three former Minneapolis policemen (Thomas Lane, J. Alexander Kueng and Tou Thao) over the killing of George Floyd in May 2020.[1]

Those limitations are the following:

  • Fewer than 100 members of the public will be permitted in the courtroom;
  • There will be closed-circuit feed from the courtroom to another room in the courthouse, accommodating only 40 members of the public and a similar room for 40 members of the media. The closed-circuit feed from the courtroom will be streamed from four monitors that will not pan or zoom and will not focus on the jury or tables for defense counsel.
  • During jury selection only two members of the media will be allowed in the courtroom, but not to anyone from the public or the families of the defendants or Mr. Floyd.
  • During the trial the courtroom will be limited to four members of the media and a sketch artist plus some family members, but not the general public.

These limitations on public access, argued the Media Coalition, amounted to a closed courtroom in violation of the First Amendment of the U.S. Constitution. “We do not need to explain to this Court the gravity of the trial, the impact Mr. Floyd’s death had on the Twin Cities and the world, or the public’s ongoing and intense concern for how the criminal justice system deals with those accused of killing him.” Moreover, the Coalition asserted that the U.S. Supreme Court has recognized, “To work effectively, it is important that society’s criminal process ‘satisfy the appearance of justice,’ and the appearance of justice can best be provided by allowing people to observe it.”

We await any response from the prosecution and the court’s ruling on the request.

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[1] Olson, Media asks judge to reconsider access to ex officers’ federal trial in George Floyd killing, StarTribune (Jan. 18, 2022). See also Pre-Trial Hearing in Federal Criminal Case Over Killing of George Floyd, dwkcommentaries.com, dwkcommentaries.com (Jan. 14, 2022);  “Federal Criminal Cases Against Ex-Minneapolis Policemen Over Killing of George Floyd” section of List of Posts to dwkcommentaries—Topical: George Floyd Killing.

Pre-Trial Hearing in Federal Criminal Case Over Killing of George Floyd

On January 11, 2022, U.S. District Court Judge Paul Magnuson held a pre-trial hearing in the federal criminal case against three ex-Minneapolis police officers (J. Alexander Kueng, Thomas Lane and Tou Thao) on charges of violating the civil rights of George Floyd in connection with his May 2020 killing. The trial is scheduled to start on January 20.[1]

The Judge expressed his concern about the potential impact of COVID-19 on the trial. “Move the case along and get it tried in a shorter time. The longer we are in the courtroom, the more exposure we have to COVID. And if we get to that point and we don’t have 12 people sitting here, you know what happens. We all go home.” The Judge also expressed concern about the threat of  “outside pressures” that could interfere with the case.

With the prosecution’s filing a list of 48 potential witnesses, the Judge said the case was “getting out of proportion” and that the parties needed to reduce the number of witnesses. The Judge also ruled that a 10-year-old witness will not be allowed to testify and that other witnesses may testify in uniform only if they are appearing in their “official function” and thus an off-duty firefighter [at the scene of the killing] will not be allowed to wear her uniform on the witness stand.

Judge Magnuson also stated that he expects the 12 jurors and six alternates to be selected in two days (January 20 and 21) and the opening statements to begin the following Monday (January 24). There will be no live-streaming of the trial and thereby not allowing the public to follow every minute. Instead there will be only a  few journalists and members of the public in the courtroom while a small group of other journalists and members of the public will watch a video feed of the trial from other rooms in the courthouse.

The next day (January 13), the prosecution filed a brief saying that prohibiting  some witnesses from testifying in the upcoming civil rights case against three former Minneapolis officers will hinder their argument and “deprive the government of its right to a fair trial.” Although they plan to shore up their witness list and heed the concerns for the virus interfering with the trial, “the pursuit of justice should not become a subordinate interest to brevity here. This case involves constitutional violations by sworn law enforcement officers that resulted in the death of a man, and neither COVID nor concerns about security should limit the government or the defense from presenting its case.”[2]

The prosecution also said the nine-year-old witness  is not a mere prop, and objectively serious medical need, “meaning one that is so obvious that even people with no formal medical training would recognize that care is required. Viewed through this lens, it is significant that a then-9-year-old observed and immediately understood that Mr. Floyd needed medical attention.”

In addition, the prosecution also objected to Magnuson’s ruling that calling multiple medical experts to testify would be “inefficient” and “improper.” Prosecutors plan to call two medical experts, including Andrew Baker, who they say is limited to his specialized expertise as Hennepin County Medical Examiner, who”only treats the dead.” As a result, the prosecution wants to call a second expert who can speak to medical issues such how the officers’ compression on Floyd’s airway and torso could hinder his ability to breath, how resuscitation could have saved him and specific effects of the combination of fentanyl and methamphetamine.

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[1] Mannix, With opening arguments on horizon, judge worries COVID outbreak could upend trial of three former Minneapolis officers, StarTribune (Jan. 12, 2022); Memorandum and Order, U.S. v. Thao, et al., Crim. No. 21-108 (D. Minn. Jan. 11, 2022).

[2] Mannix, Prosecutors say barring witnesses in case against ex-officers in George Floyd death deprives them of fair trial, StarTribune (Jan. 13, 2022).

Postponement of State Court Trial of Ex-Policemen for Killing of George Floyd                 

On January 12, 2022, Hennepin County District Court Judge Peter Cahill postponed the commencement of the state trial of three Minneapolis ex-policemen (J. Alexander Kueng, Thomas Lane and Tou Thao) on charges of aiding and abetting the May 2020 second-degree murder and manslaughter of George Floyd. [1]

The Judge ordered the parties’ attorneys to meet before January 16 to select a new trial date between March 14, 2022 and January 9, 2023. If they cannot agree on a new date, the trial will start on March 7 as previously scheduled.

In the meantime, the three men are scheduled to go on trial in federal court starting January 20 on charges of violating Mr. Floyd’s civil rights during his arrest. If that trial has not concluded by the new date for the state trial, the latter shall be continued on a daily basis until the attorneys are available.

In addition, Judge Cahill stated that in the state case the attorneys should set aside three weeks for jury selection and five weeks for trial testimony.

All of these developments happened after the state court trial, conviction and sentencing of Derek Chauvin to 22.5 years imprisonment for second-degree and third-degree murder and second-degree manslaughter of Mr. Floyd.[2] And then in mid-December 2021 Chauvin unexpectedly pleaded guilty to the federal charges against him over the killing of Mr. Floyd with Chauvin to serve the state and federal sentences concurrently in a federal prison.[3] Thus ended Chauvin’s criminal charges and trials over Floyd’s death.

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[1] Xiong, State trial of three officers charged in George Floyd killing postponed from March date, StarTribune (Jan. 12, 2022); Order Granting Joint Request To Continue Trial Date, State v. Thao, Lane, Kueng, Henn. Cty Dist. Ct., File Nos. 27-CR-20-12949, 12951 & 12953 (Jan. 12, 2022).

[2]  See the “Derek Chauvin State Criminal Trial” and “State Court Sentencing of Derek Chauvin” sections of List of Posts to dwkcommentaries—Topical: George Floyd Killing.

[3] Derek Chauvin Pleads Guilty to Federal Criminal Charges Over Killing of George Floyd, dwkcommentaries.com (Dec. 16, 2021).

Comments on International Religious Freedom

Article 1(A)  of the Convention Relating to the Status of Refugees, 189 U.N.T.S. 150, defines “refugee” to include someone who has “a well-founded fear of being persecuted for reasons of  . . . religion” and who after satisfying other stated requirements is entitled to certain protections.

The Universal Declaration of Human Rights, G.A. Res. 217 (III), U.N. Doc. A/810 at 71 (1948), has the following provisions:

  • “ Everyone is entitled to all of the rights and freedoms set forth in this Declaration without distinction of any kind, such as . . . religion. . . .” (Art. 2)
  • “Men and women of full age, without any limitation due to . . . religion, have the right to marry and to found a family.” (Art. 16(1).)
  • “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.: (Art. 18.)

The International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI)(1966), provides the following:

  • “(1) Each State Party to the present Covenant undertakes to respect to ensure to all Individuals in its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as  . . . religion . . . “  (Art.  2(1))
  • “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.” (Art. 18(1))
  • “No one shall be subject to coercion which would impair his freedom to have or adopt a religion or belief of his choice.” (Art. 18(2))
  • “freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” (Art. 18(3))
  • “The State Parties to present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.” (Art. 14(4))

These comments are in response to a reader of this blog who wanted guidance on international religious freedom and set forth just a few of the international treaties on that subject. There are many books where others can be found.

 

 

Derek Chauvin Pleads Guilty to Federal Criminal Charges Over Killing of George Floyd

On December 15, 2021, at the Minneapolis’ federal courthouse Derek Chauvin pleaded guilty to two counts of depriving George Floyd of his federally-protected civil rights by pinning his knee against Floyd’s neck and by failing to provide medical care for Floyd on May 25, 2020, ultimately causing his death.[1]

At this hearing, Chauvin also pleaded guilty to separate federal charges for holding down with his knee a 14-year-old boy in 2007 and failing to provide medical care to the boy and thereby causing non-fatal injuries.

His only comments during the hearing were short answers to questions by U.S. District Court Judge Paul Magnuson. These questions and answers undoubtedly followed the Plea Agreement and Sentencing Stipulations in his federal case over the killing of Mr. Floyd and other papers regarding pleading guilty to the 2017 mistreatment of the juvenile.

The federal court subsequently will conduct a sentencing hearing on these charges, but Chauvin and the federal prosecution have agreed that he will serve these sentences in a federal prison concurrently with his state sentence and that the federal prosecutors intends to recommend a sentence of 300 months.

Background[2]

On June 2, 2020, Chauvin in a superseding complaint was charged with these crimes under Minnesota state law regarding the killing of M. Floyd:  Second Degree Murder (Unintentional While Committing a Felony), Third Degree Murder (Perpetrating Eminently Dangerous Act and Evidencing Dangerous Mind) and Second Degree Manslaughter (Culpable Negligence Creating Unreasonable Risk).

After the district court had denied his dismissal motion, Chauvin alone went on trial, starting March 8, 2021. On April 20, 2021, the jury convicted him on all three counts: second-degree murder, third-degree murder and second-degree manslaughter.

On June 25, 2021, the court at a hearing sentenced Chauvin to 22.5 years imprisonment. At that hearing, Chauvin stated to the judge and several members of the Floyd family, “At this time due to some additional legal matters at hand, I’m not able to give a full, formal statement at this time. Briefly though, I do want to give my condolences to the Floyd family. There’s going to be some other information in the future that would be of interest, and I hope things will give you some peace of mind. Thank you.”

Observers immediately speculated, rightly so by Chauvin’s recent change of his plea to guilty, that attorneys for the prosecution and Chauvin were working on details of an agreement for a guilty plea and their negotiation of the terms of such an agreement reached fruition at the December 15th hearing.

Along the way, Chauvin has clearly indicated his preference for federal over Minnesota prisons. Perhaps that is because in state prison he is more likely to encounter fellow inmates who have had bad experiences with Minneapolis policemen, including Chauvin himself, and who as a result might have incentives to mistreat Chauvin.

Conclusion

The Chauvin guilty plea to the state charges obviously will result in the dismissal of his appeal to the Minnesota Court of Appeals.

It also leaves the other three ex-officers with the challenging decision of whether to change their pleas to guilty to the state and federal criminal charges against them and thereby eliminate the necessity of state and federal criminal trials, which might include Chauvin’s testimony against them.

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  1. Zapotosky & Bailey, Derek Chauvin signals he will plead guilty to violating George Floyd’s civil rights, Wash. Post (12/12/21); Mannix, Derek Chauvin to change plea in federal civil rights case, StarTribune (12/13/21); Plea Agreement and Sentencing Guidelines, U.S. v. Chauvin, U.S. Dist. Ct., D. MN (Case No. 21-CR-108 (PAM-TNL) Dec. 15, 2021); Mannix,  Derek Chauvin pleads guilty to civil rights charges in George Floyd’s killing, StarTribune (12/15/21); Bailey, Derek Chauvin pleads guilty to violating George Floyd’s civil rights, Wash. Post (12/15/21);Bogel-Burroughs, Derek Chauvin Pleads Guilty to Violating George Floyd’s Rights, N.Y. Times (12/15/21); Derek Chauvin pleads guilty to civil rights charges in killing of George Floyd, Guardian (12/15/2021);
  2. This blog’s many posts about the state criminal cases over the killing of Mr. Floyd are listed in List of Posts to dwkcommentaries—Topical: George Floyd Killing. This post specifically references the following posts: The Criminal Complaint Against Derek Chauvin Over the Death of George Floyd (June 12, 2020); Court of Appeals Reverses District Court’s Refusal To Follow Precedent on Third-Degree Murder Charge Against Derek Chauvin, (Mar. 5, 2021); Derek Chauvin Trial: Week One (Mar. 15, 2021); Derek Chauvin Trial: Conviction (Apr. 21, 2021); Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment (June 28, 2021).

Federal Criminal Cases Over George Floyd Death Seem Ready for Trial in Mid-January

On November 18, U.S. District Judge Paul Magnuson mailed questionnaires to prospective jurors ordering them to report to the Federal Courthouse in Minneapolis on January 20, 2022, and be ready to serve from mid-January to mid-February on the federal criminal cases against Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thao.[1]

The Judge’s letter said, “In trials of this nature, the Court and the attorneys need to ask probing questions of prospective jurors, including questions about their views on law enforcement, various interest groups, and events that have taken place over the past year-and-a-half. We do this not because we wish to pry into the private lives of prospective jurors, but because we are obligated to ensure that the jurors who hear the case will be fair and impartial.”

The Judge also asked those responding to the questionnaire to avoid media coverage related to this case.

This development looks as if it will interfere with the commencement of the state criminal trial of J. Alexander Kueng, Thomas Lane and Tou Thao, previously scheduled to start on March 7, 2022.[2]

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1/ Mannix, Federal civil rights trial for ex-Minneapolis-cops in George Floyd killing on track for mid-January,  StarTribune (11/30/21).

2/ Xiong, State trial postponed to March 2022 for ex-officers charged with aiding and abetting murder in George Floyd death, StarTribune (May 13, 2021).

Federal Criminal Cases Over George Floyd Death: Four Policemen To Be Tried Together  

As previously noted, four Minneapolis policeman—Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thao–face a federal grand jury indictment over the death of George Floyd in the District of Minnesota. They are charged with  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 to a substantial risk of harm.” [1]

All four of the defendants have pleaded not guilty to the charges.

Denial of Severance of the Four Cases

On November 29, U.S. Magistrate Judge Tony Leung denied the motions by the last three ex-policemen to sever their federal cases from the one against Derek Chauvin. [2]

The Magistrate Judge said said the attorneys making the motions had failed to prove that Chauvin’s conviction would prevent their clients from receiving a fair trial.

Elaborating on the reasons for that conclusion, the Magistrate Judge said the charges against Chauvin are not identical to the others, but there is “significant overlap and interplay” in the allegations. “Also, the Government will be using essentially the same substantive evidence against each of the Defendants at trial. There will be witnesses. A number, if not a majority, of these same witnesses will be called to testify regardless of whether Chauvin is tried jointly with Thao, Kueng and Lane. The events at issue occurred during a short temporal period on a single day in a single location. In addition to the discrete unities of time and place, there can be no genuine dispute that all four Defendants were at the scene of the events giving rise to this case.”

This decision was made “without prejudice,” meaning that if these three defendants object to this ruling, U.S. District Judge Paul Magnuson, who will be presiding over the trial, may make his own ruling on the motion.

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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); Federal Court Charges Against Ex-Minneapolis Policemen Over George Floyd’s Killing, dwkcommentaries.com (May 7, 2021).

[2] Mannix, Former Minneapolis officers should be tried together in federal case, says magistrate judge, StarTribune (11/29/21).

Chauvin and Ex-Wife Plead Not Guilty to Tax Evasion Charges 

As a previous  post reported, on July 22, 2020, Derek Chauvin and his then wife Kellie Chauvin were charged with Minnesota felony tax crimes dating back to 2014 for alleged failure to report more than $400,000 in income  and resulting failure to pay $21,853 in Minnesota taxes which  with interest and late filing and fraud penalties then amounted to $37,868. This was done in Minnesota District Court for Washington County, where they then lived. [1]

On November 5, 2021, a Washington County District Court Judge entered pleas of not guilty for the pair after each waived a pretrial hearing in two brief remote court sessions. The next date for a court hearing in the case was set for January 21, 2022.[2]

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[1]  Chauvin and Wife Now Charged with Minnesota Tax Crimes, dwkcommentaries.com (July 22, 2020).

[2]  Olson, Derek Chauvin and his ex-wife plead not guilty to tax evasion, StarTribune (Nov. 5, 2021); Karnowski (AP), Chauvin, ex-wife plead not guilty to tax evasion charges, StarTribune (Nov. 5, 2021).