There have been four recent developments in the Floyd criminal cases. First, Defendant J. Alexander Kueng has reiterated his motion to change venue in the context of determining prejudice of potential jurors in Hennepin County. Second, the State has asked for a continuance of the trial, prompting an objection from Defendant Thomas Lane. Third, the State also has requested changes of expert discovery deadlines.
The fourth is a strange order in the Thao case only by the Chief Judge of District Court, Toddrick Barnette, denying the In-Person Hearing Request (by Judge Cahill?) for the January 7 hearing before Judge Cahill. Thus, presumably there will be a remote hearing on that date before Judge Cahill. [1]
Change Venue? [2]
Setting the Stage
On December 30, Defendant J. Alexander Kueng submitted his third brief for his motion to change venue. The brief in support of the motion, however, focuses on the Court’s December 8th Questionnaire and refers to documents that are not on the publicly available website for documents in the case.
The argument starts with the Scheduling Order, dated June 30, that states: “The parties shall meet and seek agreement on a proposed jury questionnaire and forward a draft of the proposed questionnaire to chambers by November 1, 2020. Parties my supplement the proposed questionnaire with individual questions upon which the parties did not agree. (Para. 2 (F) (emphasis in original).)
The argument then states, “On December 1, 2020, the defense and the state submitted questionnaires respectfully. See Exhibits 1 and 2 respectively.” (Emphasis in original).) No explanation is provided as to why these submissions were not made by November 1 as the Scheduling Order provided or whether the Court had extended the deadline to December 1.
The argument concludes, “on December 8, 2020, the parties were provided the ‘final form of the Juror Questionnaire’ via email from chambers. See (Exhibit 3-Index # 238). In the same message the parties were informed that the questionnaire had already been sent to prospective jurors or would be shortly. ‘Neither party was given the opportunity to review the questionnaire in advance or provide argument.” (This email from the Judge’s chambers also is not in the record available to the public, and a prior post noted that it was strange that the parties had not previously seen or approved this Questionnaire and that it was ambiguous as to whether it already had been sent to potential jurors.)
The Merits of the Attack on the Questionnaire
The sole legal authority cited by Kueng is U.S. v. Tsarnaev, 968 F.3d 24 (First Cir. July 31, 2020), a case involving appellate reversal of the conviction of the younger of two brothers who detonated two homemade bombs at the 2013 Boson Marathon that killed three people and injured hundreds more. The ground for this decision was the trial judge’s failure to conduct an adequate voire dire of potential jurors in this case when public “reporting of the events here– in the traditional press and on different social-media platforms –stands unrivaled in American legal history (at least as of today).” Indeed, “[r]eports and images of their brutality flashed across the TV, computer, and smartphone screens of a terrified public—around the clock, often in real time. One could not turn on the radio either without hearing about these stunningly sad events.”
This court (U.S. First Circuit Court of Appeals) already had addressed these issues in such cases of extensive pretrial publicity in Patricia v. United States, 402 F.2d 314, 318 (1st Cir. 1968). That case involved an organized-crime prosecution where the press called one of the defendants ‘Boss of the New England ‘Cosa Nostra’ and how an attorney for a government witness nearly died in a car-bomb incident.
In that and similar cases of pretrial publicity in its jurisdiction, the First Circuit directed that “on request of counsel, . . . the [trial judge] should proceed to examine each prospective juror apart from other jurors and prospective jurors, with a view to eliciting the kind and degree of his exposure to the case or to the parties, the effect of such exposure on his present state of mind, and the extent to which such state of mind is immutable or subject to change form evidence.”
The First Circuit emphasized, “Decisions about prospective jurors’ impartiality are for the judge, not the potential jurors themselves . . . .[a]nd that is because prospective jurors ‘may have an interest in concealing [ their] own bias’’ or ‘may be unaware of it.”
The trial judge in the Tsarnaev case, however, failed to meet this standard ‘by not asking potential jurors what they had read and heard about the case. Instead, the trial judge merely asked them whether they could decide this case based on the evidence and thereby made them the ‘judges of their own impartiality.’
In short, said the First Circuit, “a judge cannot delegate to potential jurors the work of judging their own impartiality.”
It also should be noted that at trial, the younger brother (Dzhokhar Tsarnaev) through his attorneys “conceded that he did everything the government alleged, but he insisted that Tamerlan [his now deceased older brother] was the radicalizing catalyst, essentially intimidating him in to acting as he had.” . . . Apparently unconvinced, a jury convicted him of all charges and recommended a death sentence on several of the death-eligible counts—a sentence that the district judge imposed (among other sentences).”
Postpone Trial? [3]
On December 31, the State filed a motion for continuance of the start of the trial from March 8 to June 7,2021. It states, “Although the State stands ready to try this case on the current trial date of March 8, it believes that a three-month continuance [to June 7] is in the best interests of public health.” This “high-profile trial is unique, and it pose unique public health risks.” The large number of people who will be directly involved plus possible public demonstrations all create the risk of community spread. Another complication is the upcoming COVID-19 public vaccination program, which could disrupt trial partipants and which may reduce the health risks of such a continuance.
On December 31, Defendant Thomas Lane had filed an objection to such a continuance merely stating that the “State and its expert, although all powerful, cannot see into the future.”
Earlier this month, Derek Chauvin’s attorney, Eric Nelson, filed a motion for a trial delay and told the StarTribune he had no objection to the State’s motion while the lawyers for Kueng and Thao had no definitive response regarding the State’s motion.
Change Discovery Deadlines? [4]
On December 24, the State asked for an amendment of the Scheduling Order of December 17 to establish new deadlines for submission of experts reports and rebuttal reports. Here are the new deadlines proposed by the State:
• February 1 for “all parties’ expert reports;”
• February 19, for expert rebuttal reports;
• February 26, for all motions in limine regarding expert reports and testimony;
The State argued that the Court’s original Scheduling Order of October 8 “provided deadlines that balanced the rights and obligations of the parties with respect to expected expert witnesses.” However, without notice to the parties, the Court on December 17 “significantly altered the existing expert witness deadlines only for the Defendants, thereby depriving the State of adequate advance notice of Defendants’ expert disclosures, impairing the State’s ability to obtain its expert reports and prepare for trial, and giving the Defendants substantially more time than the State to obtain expert reports.”
The State also requested an order requiring each Defendant to file a written waiver of their right to be present if they elect to not appear at the January 11 hearing. According to the State, a “criminal defendant has a right to be present at critical stages of the criminal proceedings” and a waiver of that right must be made personally by the defendant.
All of the above dates for expert disclosures may be affected if the court grants the State’s motion for a postponement of the start of trial.
Conclusion
As a retired attorney without criminal law experience, I think the Tsarnaev case raises serious questions about the legitimacy of Judge Cahill’s handling of the Questionnaire to the potential jurors, including at least the following: the phrasing of some of the questions; distributing it to a pool of potential jurors apparently without prior disclosure to the parties and obtaining their comments; and distributing it to an undisclosed number of potential jurors around four months before the commencement of trial.
Getting these issues straightened out along with resolving the other issues raised by the parties discussed above also suggests that the trial should be delayed.
As always, I invite other reactions to these issues by adding comments to this post.
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[1] Order re Pandemic In-Person Hearing Request, State v. Thao, Hennepin County District Court, Court File No. 27-CR-20-12949 (Dec. 30, 2020).
[2] [Kueng’s] Third Supplemental Memorandum Notice of Motion and Motion To Change Venue, State v. Kueng, Hennepin County District Court, Court File No. 27-CR-20-12953 (Dec. 30, 2020). See also Court’s Questionnaire for Prospective Jurors in George Floyd Criminal Cases, dwkcommentaries.com (Dec. 23, 2020),
[3] State’s Motion for Continuance of Trial, State v. Chauvin, Hennepin County District Court,, Court file NO. 27-CR-20-12646 (Dec.31, 2020); Affidavit of Ezekiel Jonathan Emanuel, State v. Chauvin, Hennepin County District Court,, Court file NO. 27-CR-20-12646 (Dec.31, 2020), [State’s] Memorandum in Support of Motion for Continuance of Trial, State v. Chauvin, Hennepin County District Court, Court file NO. 27-CR-20-12646 (Dec.31, 2020), State v. Chauvin, Hennepin County District Court,, Court file NO. 27-CR-20-12646 (Dec.31, 2020); [Chauvin] Defendant’s Notice of Motion and Motion for Continuance, State v. Chauvin, Hennepin County District Court,, Court file NO. 27-CR-20-12646 (Dec. 14, 2020), Thomas Lane’s Objection to State’s Motion To Continue, State v. Lane, Hennepin County District Court, Court file NO. 27-CR-20-12951 (Dec. 31 2020); Walsh, Citing COVID, prosecutors seek 3-month delay in ex-officers’ trial over George Floyd death, StarTribune (Dec. 31, 2020). Earlier Defendant Thao had filed a motion for trial delay due to the State’s alleged failure to provide timely disclosure of evidence, especially documents about an interview of Hennepin County Medical Examiner Andrew Baker on July 8, and on December 18, the State denied those allegations. (Simons, Prosecutors in Floyd case deny defense claims that they delayed sharing evidence, StarTribune (Dec. 19, 2020).)
[4] State’s Motion To Amend December 17 Scheduling Order on Expert Disclosures, State v. Chauvin, Hennepin County District Court,, Court file NO. 27-CR-20-12646 (Dec. 24, 2020); State’s Memorandum in Support of Motion To Amend December 17 Scheduling Order on Expert Disclosures, State v. Chauvin, Hennepin County District Court,, Court file NO. 27-CR-20-12646 (Dec. 24, 2020). See also Court Issues Order on Expert Disclosures in George Floyd Criminal Cases, dwkcommentaries.com (Dec. 18, 2020).
Comment: Hearing in George Floyd Criminal Cases Considers Delay in Trial and Prosecution’s Alleged Abuse of Discovery Obligations
On January 7, Hennepin County District Court Judge Peter Cahill held a hearing on motions to postpone the trial and to impose sanctions on the prosecution for alleged failure timely to provide certain reports.
The Judge said he thought the prosecution had acted in good faith, but should have immediately stamped the report regarding an interview of the Hennepin County Chief Medical Examiner, sent it through the scanner and transmitted it to defense counsel.
The Judge did not rule on the motions to delay the trial (or any other pending motion), but said that delaying the Floyd trial because of COVID-19 concerns would simply put participants in other cases at risk because “Somebody is going to be in [his] courtroom . . .come March 8.”
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Xiong, Prosecutors in George Floyd case mishandled sharing evidence, defense attorneys continue to allege, Star Tribune (Jan. 7, 2021), https://www.startribune.com/prosecutors-in-george-floyd-case-mishandled-sharing-evidence-defense-attorneys-continue-to-allege/600007945; Bailey, Judge in George Floyd case hears motions to delay March trial, Wash. Post (Jan. 7, 2021), https://www.washingtonpost.com/national/judge-in-george-floyd-case-hears-motions-to-delay-march-trial/2021/01/07/adb081dc-513c-11eb-bda4-615aaefd0555_story.html.
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