Details about Upcoming Criminal Trial of Derek Chauvin

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

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

 

 

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

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

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

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

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

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

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

Biblical Text for Recent Worship Service

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

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

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

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

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

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

The Sermon, “Listening to Lament” [5]

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

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

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

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

[1] COVID-19 Coronavirus Pandemic,worldometer.

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

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

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

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

Appellate Hearing on Third-Degree Murder Charge Against Derek Chauvin 

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

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

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

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

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

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

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

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

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

Federal Investigation of the Killing of George Floyd

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

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

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

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

 

 

 

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

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

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

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

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

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

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

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

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

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

 

Has the Chauvin Trial Been Delayed???? 

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

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

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

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

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

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

Any reason to doubt this conclusion?

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

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

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

 

The Challenge of a Fair Trial for Derek Chauvin 

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

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

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

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

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

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

Reactions

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

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

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

Proposed Jury Instructions in Derek Chauvin Criminal Trial

On February 8, the parties submitted proposed jury instructions for the start of the Chauvin criminal trial. [1]

To some extent, both sets basically followed the Criminal Jury Instruction Guide: Criminal (CRIMJIG) and to a large extent are identical.  They are listed first. Then there is a list of the State’s proposals that are unique followed by a list of Chauvin’s unique proposals.

Identical  Proposed Instructions

  1. Instructions To Be Considered as a Whole (CRIMJIG 3.07)
  2. Duties of Judge and Jury (CRIMJIG 3.01)
  3. Presumption of Innocence (CRIMJIG 3.02)
  4. Proof Beyond a Reasonable Doubt (CRIMJIG 3.03 & modified)
  5. Direct and Circumstantial Evidence (CRIMJIG 3.05)
  6. Rulings on Objections to Evidence (CRIMJIG 3.06)
  7. Statements of Judge and Attorneys (CRIMJIG 3.11)
  8. Notes Taken by Jurors (CRIM 3.09)
  9. Statements of Judge and Attorneys (CRIMJIG 3.11)
  10. Evaluation of Testimony—Believability of Witnesses (CRIMJIG 3.12)
  11. Expert Testimony (CRIMJIG 3.13)
  12. Impeachment (CRIMJIG 3.15)
  13. Evidence of Other Crimes or Occurrences Involving Defendant (CRIMJIG 3.16)
  14. Definitions of Words
  15. Murder in the Second Degree—While Committing a Felony—Defined (CRIMJIG 11.28)
  16. Murder in the Second Degree—While committing a Felony—Elements (CRIMJIG 11.29)
  17. Manslaughter in the Second Degree—Defined (Minn. Stat. 609.205)
  18. Manslaughter in the Second Degree—Elements (CRIMJIG 11.56 (modified)
  19. Aiding and Abetting Manslaughter in the Second Degree—Elements
  20. Duties of Jurors; Selection of foreperson; Unanimous Verdict;Deliberation; Return of Verdict.

The State’s Unique Proposed Instructions

  1. Defendant’s Right Not to Testify.
  2. Demonstrative Evidence
  3. Multiple Offenses Considered Separately
  4. Aiding and Abetting a Crime—Defined
  5. Aiding and Abetting Murder in the Second Degree —Elements
  6. Murder in the Third Degree—Depraved Mind—Defined
  7. Murder in the Third Degree—Depraved Mind–Elements
  8. Aiding and Abetting Murder in the Third Degree—Elements
  9. Aiding and Abetting Manslaughter in the Second Degree—Elements
  10. Aiding and Abetting Manslaughter in the Second Degree—Elements
  11. Defense of Self or Others
  12. Authorized Use of Force by Police Officer
  13. Defense of Self or Others
  14. Jury Questions During Deliberations

 Chauvin’s Unique Proposed Instructions

  1. Assault in the Third Degree Defined (CRIMJIG 13.15)
  2. Assault in the Third Degree—Elements (CRIMJIG 13.16 (modified); Minn. Stat. 609.02, Subd. 7a, 9(3), 10)
  3. Manslaughter Causation (CRIMJIG 3.31 (modified))
  4. Reasonable Use of Force
  5. Negligence of Mr. Floyd
  6. Additional Forms of Mr. Floyd’s Negligence
  7. Verdict Forms (CRIMJIG 3.04)
  8. Final Instruction: Duty of the Jury

Conclusion

The State submitted several proposed instructions on third-degree murder even though that alleged crime has been dismissed by the District Court followed by an appeal of that order by the State. [2]

In addition, this blogger was surprised by the State’s proposed instructions on aiding and abetting when Chauvin always has been considered, at least in the press, as the main alleged offender with the other defendants, who are not on trial starting March 8 –J. Alexander Kueng, Thomas Lane and Tou Thao—being charged with aiding and abetting Chauvin.

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[1] State’s Proposed Jury Instructions, State v. Chauvin, Hennepin County District Court, Court file No. 27-CR-20-12646 (Feb. 8, 2021); Defendant’s Proposed Jury Instructions, State v. Chauvin, Hennepin County District Court, Court file No. 27-CR-20-12646 (Feb. 8, 2021).  Copies of these documents are available on the District court’s website: https://www.mncourts.gov/media/StateofMinnesotavDerekChauvin. Many of the proposals reference CRIMJIG, which refers to Minnesota Jury Instruction Guide: Criminal, which is published by Thompson West, but is not freely available on the Internet.

[2] Prosecution and Chauvin Dispute Adding Third-Degree Murder Charges in George Floyd Criminal Cases, dwkcommentaries.com (Feb. 10,2021); Court Denies Third-Degree Murder Charges for George Floyd Killing, dwkcommentareis.com (Feb. 12, 2021).

 

Motions in Limine Before Derek Chauvin Criminal Trial  

Motions in limine refer to requests to the trial court by prosecutors or defense attorneys to limit the introduction of certain evidence, anticipated questioning by opposing counsel at trial and/or anticipated arguments of opposing counsel at trial. Such motions are often based on Rule 403 of the Minnesota Rules of Evidence, which provides the following: “Although relevant, evidence may be excluded ii its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues. or misleading the jury, or by considerations of undue delay, waste of time. or needless presentation of cumulative evidence.” [1]

Both the Prosecution and Derek Chauvin have submitted such motions to the Hennepin County District Court before the commencement of trial on August 8.[2] They are summarized below.

Prosecution’s Motion

This motion seeks an order prohibiting the following: at trial:

  1. “[Impeaching] any witness with a statement from a third-party summary. . . if the witness does not adopt same as his or her prior statement.”
  2. “[Any] expert witness from testifying regarding the opinion of any other expert he or she consulted who is not testifying at trial.”
  3. “Defendant . . . arguing at trial (1) that the State must show that he intended to kill George Floyd or intended to cause him bodily harm; or (2) that the State must show ‘but for’ causation in order to establish the causation element of the charged offenses.”
  4. “[Any] argument, evidence, or testimony regarding the Minneapolis Police Department’s decision-making process in terminating Chauvin’s employment as an MPD officer . . .[or] any argument, evidence, or testimony suggesting that MPD may face civil liability stemming from George Floyd’s death.”
  5. “[Any] argument or evidence regarding changes that were made after May 25, 2020 to the MPD Policy and Procedure Manual or any other MPD training documents.”
  6. “Defendant from introducing into evidence the documents labeled Bates 002566 through 002606—a series of slides entitled ‘Excited Delirium Syndrome’—unless Defendant can lay a proper foundation for their admission.”
  7. “Defendant from relying on unauthenticated transcripts at trial, and from admitting any transcripts into evidence absent the State’s agreement.”
  8. “Defendant’s counsel from introducing, through direct or cross-examination and during opening statement and closing argument, any hearsay statement of Defendant unless the statement complies with a hearsay exception.”
  9. “Defense’s counsel from commenting at any time during the trial or during closing arguments on the failure or alleged failure of the prosecution to call a witness or introduce evidence equally available to either party.”
  10. [Repeat of # 9.]
  11. “Admission of any testimony or evidence regarding any alleged bad acts committed or allegedly committed by any witness without prior notice to the State, giving the [S]tate an opportunity to be heard and litigate its admissibility, and a prior Court ruling on its admissibility.”
  12. “Defendant’s counsel from attempting to ask any witness about any crime, act of dishonesty, or conviction related to that or another witness without prior notice to the State, giving the [S]tate the opportunity to be heard on and litigate its admissibility and a prior court ruling on its admissibility.”

Chauvin’s Motion

The motion seeks an Order to:

  1. “[Sequester] the witnesses.”
  2. “[Preclude} the State, or any of its witnesses, from referring to George Floyd as the ‘victim’ or ‘accused in this matter.”
  3. “[Preclude] the State, or any of its witnesses from referring to Derek Chauvin as the ‘defendant’ or ‘accused’ in this matter.”
  4. “[Preclude] the State from introducing any prior statements of witnesses, as they are hearsay, unless and until that witness has previously testified.”
  5. “[Require] the State to provide the defense of any documents, information and/or criminal background checks that it obtains regarding any prospective juror.”
  6. “[Direct] the State to disclose complete criminal histories of listed witnesses , including law enforcement officers.”
  7. “[Require] the State to provide the defense with any criminal background checks that it obtains regarding any prospective witness.”
  8. “[Require] the State to provide to defense counsel the substance of all conversations between Victim Witness Program personnel and any and all persons having information about this case, and disclose all Victim Witness Program records, reports, notes, files and other documents relating to contact with any and all persons with information about this case.”
  9. “[Compel] the prosecuting attorney to provide defense counsel with the substance of conversations between him, and any and all persons in the Attorney General or Hennepin County Attorney’s Office(s) having information about this case, and access to all his notes or other documents relating to her contact with all persons she intends to call as witnesses in this case and with any and all persons having information about this case.”
  10. “[Require] the State ensure that its witnesses know the limits of permissible testimony.”
  11. “[Prohibit] the State from commenting on the failure of the Defense to call a witness, particularly when the witness is equally available to both parties.”
  12. “[Prohibit] the State from asserting, in the presence of the jury, a personal belief or opinion as the credibility of a witness.”
  13. “[Prohibit] the prosecutor from offering his own personal l opinion, either directly or indirectly expressed, that the Defendant is guilty.”
  14. “[Direct] the State to instruct State witnesses that they are not to assert a personal belief or opinion as the Defendant’s guilt or innocence or whether or not the Defendant is the type of person who could commit such an offense.”
  15. “[Prohibit] the State from introducing any and all evidence or witnesses related to evidence that has not been fully disclosed, including but not limited to recorded jail calls, additional witness interviews or ongoing investigation.”
  16. “[Direct] any person listed as a witness be directed not to view any live stream coverage of the trial absent Court approval.”
  17. “[Prohibit] the State from introducing any evidence pertaining to Washington County Court File #80-CR-20-2813, wherein the Defendant is accused [of] various tax related crimes.”
  18. “{Preclude] witness police officers from speculating or rendering an opinion on how they would have handled the arrest of Mr. Floyd differently.”
  19. “[Preclude] testimony about any police policy . . .that was not in effect at the time of Mr. Floyd’s arrest or any subsequent changes in policies.”
  20. “[Preclude] testimony about medical examinations performed by anyone other than the Hennepin County Medical Examiner Dr. Baker.”
  21. “[Preclude] the speculative testimony from Genevieve Hanson that she believes that if she had intervened, she could have saved Mr. Floyd.”
  22. “[Preclude] the testimony of Donald Williams as to his training, experience and/or expertise in mixed martial arts, boxing or other training on the grounds that is irrelevant and overly prejudicial [and the] foundation for expertise cannot be established nor has it been disclosed . . . [and that his] training/experience is not the same as the training of Minneapolis Police Officers.”
  23. “[Preclude] any member of the Minneapolis Fire Department and paramedics from testifying as to cause and manner of Mr. Floyd’s death or any contributing factors to Mr. Floyd’s death.”
  24. “[Preclude] the state from questioning witnesses about aspects of their training that have not been fully disclosed, including C.P.R. training and training on excited delirium.”
  25. “[Preclude] the state from questioning or commenting on Chauvin’s right to remain silent, including his pre-Miranda right to remain silent.”
  26. “[Preclude] testimony about a blue line or wall of silence or about the officer’s communications with the Minneapolis Police Federation or the Minnesota Police and Peace Officers Association.”
  27. “[Preclude] any reference to the David Cornelius Smith Case for lack of relevance and potential to mislead and/or prejudice the jury.”
  28. “[Require] the state to (a) Disclose which witnesses the State actually intends to call to testify during the trial at least 2 weeks prior to trial; (b) . . . disclose the witnesses they intend to call the next day prior to adjournment; (c) [keep] all witnesses subpoenaed by the State under subpoena, whether issued by the State or the Defense, until the close of all evidence or agreement by the parties to release the witness from the Court’s subpoena; (d) Require the State to identify which Minneapolis Police Department training materials it intends to introduce or rely upon at trial; (e)Require the State to identify which Personnel Records they may seek to introduce or elicit testimony regarding.”
  29. “[Preclude] any expert witness from referencing their personal clinical experiences and/or anecdotal testimony on the grounds that such information is neither peer reviewed nor available for inspection/verification.”
  30. “[Preclude] any expert from likening the death of George Floyd to the crucifixion of Jesus Christ on the ground that such analogy is prejudicial.”
  31. “[Preclude] the State from playing, publishing or otherwise relying upon the statements of co-defendants Thao and Lane on the grounds that the Defense would not be permitted to cross-examine these co-defendants in violation of his Constitutional rights.”
  32. “[Preclude] the entirety of the proffered testimony of Dr. Sarah Vinson (psychiatric evaluation of George Floyd) on the grounds that the evaluation is speculative, based upon multiple levels of inadmissible hearsay, fails to meet scientific standards, offers no assistance to the jury, or so favors one party.” [Alternatively, provide] an in camera review of her report and a Frye-Mack hearing to address the admissibility thereof.”
  33. “[Limit] the scope of ‘spark of life’ testimony to its permissible bounds [and if those bounds are exceeded, permit the Defendant] to introduce evidence of [Mr. Floyd’s] prior bad acts.”
  34. “[Permit] the Defendant to supplement the record by offer of proof with additional information regarding George Floyd’s May 2019 arrest and hospitalization.”
  35. “[Permit] testimony of George Floyd’s opiate addiction and medical records pertaining thereto, including his hospitalization following his May 2019 arrest.”
  36. “[Preclude] any evidence of or reference to citizen complaints filed against Mr. Chauvin in his capacity as a police officer or investigated by the Minneapolis Police Department whether sustained or deemed unfounded.”
  37. “[Require] the state to disclose any information it obtains relevant to any and all identified expert witnesses from the National Prosecutor’s College.”

Conclusion

 Although this blogger is a retired attorney, he never practiced criminal law and has no experience with motions in limine. But he is amazed by the complexity of these motions and the administrative difficulty  of complying therewith if they are granted.

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[1] Minn. Rules of Evidence 403;Minnesota County Attorneys Council, Re: Trial Motions in Criminal Cases, Ch. XVI (June 1980).

[2] State’s Motions in Limine, State V. Chauvin, Court File NO. 27-CR-20-12646 Feb. 8, 2021); State’s Memorandum of Law in Support of Motions in Limine, State V. Chauvin, Court File NO. 27-CR-20-12646 Feb. 8, 2021); Defendant’s Motions in Limine, State V. Chauvin, Court File NO. 27-CR-20-12646 Feb. 8, 2021). The above documents can be downloaded from the following Hennepin County District Court website for these cases: https://www.mncourts.gov/media/StateofMinnesotavDerekChauvin.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Witness Lists for the Derek Chauvin Criminal Trial   

This post will analyze the trial witness lists in the Derek Chauvin criminal trial which is scheduled to begin on March 8.[1] Previous posts discussed the Court of Appeals’ recent refusal to postpone the commencement of that trial [2] and recent papers concerning the third-degree murder charges, including the trial court’s dismissal of those charges.[3] Future posts will examine the recent filing of motions in limine and trial briefs.[4]

Witness Lists

The State lists 363 witnesses while Chauvin lists 212 witnesses for a total of 575. However, elimination of duplicates on Chauvin’s leaves only 44 additional witnesses for a revised total of 407. It should also be noted that the State says that its witness list includes ”any person whose name is disclosed in any of the prosecution disclosures as well as any witness disclosed by the defense . . . [and] .. .any other witnesses [who] become known prior to the trial of this action.”

Here are tabulations of the witness lists: the totals for the State while only the unique number of witnesses are counted from Chauvin’s list  The “Revised Total” is the sum of these two sets.

 

Category State Total Chauvin

Unique

Revised

Total

Mpls Police Dept      61          5           66
Mpls Park Police       2          0             2
Mpls Fire Dep’t       6          0             6
Other Cities Police       4          0             4
Hennepin County Sheriff       1         0             1
Ramsey County  Jail       1         0             1
MN Bur. Crim. Appreh.     46         3           49
FBI     26         6           32
U.S. Secret Service      1         0             1
Other Federal Employees      0         6             6
HCMC/Medical     29         2           31
Civilian/scene   185         0           52
CONFIDENTIAL PERSON, Bloomington,, MN       1         0             1
Hennepin County Attorneys       0         5             5
Defense Experts       0      16           16
Defense Audio/Video       0        1              1
TOTAL   363      44          407

Comments on the Lists

Chauvin’s list was easy to handle because it put the witnesses in named groups: (1) BCA Agents/employees/ analysts; (2) Minneapolis Police Department officers/employees (plus 911 Emergency Dispatch); (3) Federal employees; (4) Medical Personnel/HCMC Personnel; (5) Minneapolis Fire Department Personnel; (6) Minneapolis Park Police Personnel; (7) Civilian/scene witnesses; (8) Hennepin County Attorney’s Office; (9) Defense Experts; and (10) Defense Audio/ Video Preparation.

The State’s list was more difficult to handle because each of 12 pages had two columns of 15 names in separate alphabetical order plus the last page with three additional names (all with identification of their employers). However, they were not separated into their employer groups.

 Minneapolis Police Department Witnesses.

This list includes the following leaders of the Department: Chief Medaria Arradondo, Assistant Chief Henry Halverson, Deputy Chief of Investigations Kathleen Waite; Deputy Chief of Patrol Erick Fors; Inspector Katie Blackwell, and Commanders Travis Glampe and Thomas Wheeler.

The State’s list also includes co-defendants J. Alexander Kueng, Thomas Lane and Tou Thao, who , if called and have not reached guilty plea deals, would probably assert the privilege against self-incrimination and not answer any questions.

Minneapolis Park Police Witnesses list includes  Chief Jason Ohotto.

Minneapolis Fire Department Witnesses list includes Deputy Chiefs Kathleen Mullen and Bryan Tyner.

Other Cities Police witnesses are Officers Alecia Ainslie and Shaun Anselment of the Burnsville, Minnesota Police Department; Chief Kelly McCarthy of the Mendota Heights, Minnesota Police Department; and Jody Stigler of the Los Angeles, California Police Department.

Confidential Person from Bloomington Minnesota. Who could this be?

Conclusion

Melding these two lists into the above table was not easy, and errors could have been made. Identification of such errors would be appreciated.

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[1] State’s Prospective Witness List, State V. Chauvin, Court File NO. 27-CR-20-12646 Feb. 8, 2021); Defendant’s Witness List, State V. Chauvin, Court File NO. 27-CR-20-12646 Feb. 8, 2021).

[2]  See these posts to dwkcommentaries.com: Update on Status of Trial Dates in George Floyd Criminal Cases (Feb. 4, 2021); Appellate Rejection of State’s Appeal of Early Start of Chauvin Trial (Feb. 13, 2021).

[3]  Prosecution and Chauvin Dispute Adding Third-Degree Murder Charges in George Floyd Criminal Case, dwkcommentareis.com( Feb. 10, 2021); Court Denies Third-Degree Murder Charges for George Floyd Criminal Cases, dwkcommentaries.com (Feb. 12, 2021).

On February 12, the State appealed the denial of its motion to reinstate third-degree murder charges to the Court of Appeals. (Notice of Appeal by the Prosecuting Attorney to the Court of Appeals from District court Order Denying State’s Motion to Reinstate or Add Third Degree Murder Charge, State v. Chauvin, Court file No. 27-CR-20-12646 (Feb. 12, 2021); Statement of the Case, State v. Chauvin, Minn. Court of Appeals, Court file No. 27-CR-20-12646 (Feb. 12, 2021); Xiong, Prosecutors ask Court of Appeals a second time to intervene in George Floyd case, StarTribune (Feb. 16, 2021)

[4] State’s Motions in Limine, State V. Chauvin, Court File NO. 27-CR-20-12646 Feb. 8, 2021); State’s Memorandum of Law in Support of Motions in Limine, State V. Chauvin, Court File NO. 27-CR-20-12646 Feb. 8, 2021); Defendant’s Motions in Limine, State V. Chauvin, Court File NO. 27-CR-20-12646 Feb. 8, 2021); State’s Proposed Jury Instructions, State V. Chauvin, Court File NO. 27-CR-20-12646 Feb. 8, 2021); Defendant’s Proposed Jury Instructions, State V. Chauvin, Court File NO. 27-CR-20-12646 Feb. 8, 2021).