Prosecution Appeals Trial Dates in George Floyd Criminal Cases   

On January 28^th the State of Minnesota filed an appeal to the Minnesota Court of Appeals from Hennepin County District Court  orders denying motions to have only one trial in August of all four defendants in the George Floyd criminal cases.[1]

The issues of whether there  should be one trial of all four defendants or two trials (one of Derek Chauvin and another for the other three) and the date(s) for same have been subject to the following orders from Hennepin County District Court Judge Peter Cahill:

• On November 5 Judge Cahill issued a 51-page Order and Memorandum Opinion granting the State’s motion for joinder of all four defendants in one trial. [2]
• On January 11, the Judge ordered that Chauvin be tried separately starting March 8 with the other three being tried together starting August 23. This order was due to complications of complying with COVID-19 physical restrictions.[3]
• On January 21, the Judge denied the State’s motion for reconsideration of the January 11^th order and instead having one trial of all four defendants In August, thus leaving Chauvin’s trial to start on March 8^th and the other on August 23.[4]

The subsequent appellate filing by the State was documented by two virtually identical Statements of the Case by Appellant State of Minnesota with formal briefs to follow.[5] The following is their argument for the  appeal.

“The District Court’s decision to proceed to trial on March 8 and to proceed with two separate trials creates a significant public health risk. Regardless of how this Court elects to exercise jurisdiction, relief is warranted here  because the District court’s decision violates the law and threatens serious harms to public health. The District Court’s decision to proceed with two separate trials, including one in March 2021, was a clear abuse of discretion. The decision to proceed with trial on March 8 also directly conflicts with the Minnesota Judicial Council’s order barring in-person criminal trials until March 15, except in situations not applicable here. In addition, because none of the factors in Minnesota Rule of criminal Procedure 17.03 warrant severance, the district court’s sua sponte decision to sever Defendant Chauvin’s trial violates rules 17.03.”

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[1]  Xiong, Minnesota Court of Appeals asked to intervene in George Floyd case, StarTribune (Jan. 29, 2021); Assoc. Press, Prosecutors appeal ruling that split trials in Floyd’s death, Wash. Post (Jan. 28, 2021).

[2] Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing, dwkcommentareis.com (Nov. 5, 2020).

[3] Chauvin To Be Tried Separately in George Floyd Criminal Cases, dwkcommentaries.com (Jan. 12, 2021).

[4]  Comment: Denial of Delay in Chauvin Trial in George Floyd Criminal Cases, dwkcommentaries.com ( Jan. 21, 2021); Prosecution Requests One Trial in August in George Floyd Criminal Cases, dwkcommentaries.com (Jan. 21, 2021).

[5] Statement of the Case by Appellant State of Minnesota, State v. Chauvin (Jan. 28, 2021); Statement of the Case by Appellant State of Minnesota,  State v. Kueng (Jan. 28, 2021). The Supreme Court Order and Rule of Criminal Procedure 17.03 are attached below.

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Minnesota Supreme Court, Order Governing the Continuing Operations of the Minnesota Judicial Branch (Jan. 21, 2021)  

The peacetime emergency first declared by the Governor of the State of Minnesota on March 13, 2020, due to the COVID-19 pandemic has been extended and continues as of the date of this order. On January 6, 2021, the Governor removed or modified some restrictions on certain gatherings and activities that were put in place in November 2020. See Emergency Exec. Order No. 21-01 (Jan. 6, 2021). The Minnesota Judicial Branch is exempt from the limits on gatherings that are imposed in the Governor’s executive orders and proceedings held by the Judicial Branch are governed by policies established by the Chief Justice and court order. Id. at 6.

The operations of the Judicial Branch have been governed by the order filed on November 20, 2020. See Order Governing the Continuing Operations of the Minnesota Judicial Branch, No. ADM20-8001 (Minn. filed Nov. 20, 2020). The Judicial Branch has also adopted requirements for face coverings in court facilities, Order Requiring Face Coverings at Court Facilities, No. ADM20-8001 (Minn. filed July 7, 2020), and has implemented exposure control measures at court facilities and other locations at which judicial branch proceedings are held, consistent with public health guidance.

In order to continue the operations of the Judicial Branch consistent with public health guidance as pandemic conditions evolve, the following directions will govern through March 14, 2021.

IT IS HEREBY ORDERED THAT:Case Proceedings: district courts.

1. Judges and court staff shall continue to process cases, in all case types, regardless of whether the judge or employee works at the court facility or remotely. Other than proceedings held in person in a courtroom as authorized by paragraphs 2 through 4 of this order, all proceedings in all case types, including proceedings in treatment courts, shall be held by remote technology that permits the parties and attorneys to appear without being in the courtroom or by review of the parties’ submissions without oral argument. Interpreters shall appear remotely if the technology is available to do so, even if the parties and attorneys appear in person.
2. Jury trials in progress shall proceed to completion. No new jury trials will commence before March 15, 2021, except as stated herein. For criminal jury trials, the chief judge in the district where the trial is to be held may grant an exception for a criminal jury trial to be held in person. Exceptions shall be granted for criminal cases where the defendant has made a speedy trial demand, the defendant is in custody, and the defendant is charged with either a felony crime or a non-felony crime against a person, unless the chief judge determines that the trial cannot proceed safely due to local conditions. For civil jury trials, the chief judge in the district where the trial is to be held, after consultation with the Chief Justice, may grant a request for the civil jury trial to be held in person. As an alternative to an in-person civil jury trial, civil jury trials may proceed remotely if the presiding judge and the parties agree.
3. [Grand juries]  . . . .
4. All other proceedings in the district court, other than those proceedings subject to paragraphs 2 and 3 of this order, shall be conducted remotely unless the chief judge of the district in which the proceeding is to be held grants an exception for an in person proceeding. Chief judges must report each exception granted under paragraphs 2 to 4 of this order to the State Court Administrator on a weekly basis or on such other schedule as the State Court Administrator may set. Rules of procedure that prohibit holding court proceedings remotely or that constrain the use of remote technology to conduct court proceedings, specifically Minn. R. Crim. P. 1.05, Minn. Gen. R. Prac. 131, Minn. Gen. R. Prac. 309.02, Minn. Gen. R. Prac. 359.03, Minn. R. Juv. Prot.P.11.03, Minn. R. Adoption. P. 12.03, Minn. Spec. R. Commit. P. 14, are suspended to the extent that those rules contradict the terms of this paragraph until further order of this court.

Court Facilities, Public Access, and Court Administration.

8. The courts remain open for business on a limited basis, with access to court facilities subject to conditions imposed by county officials. The order of July 7, 2020, requiring face coverings in court facilities, remains in effect in all court facilities.
9. At least one public service counter in each county and the public service counter for the appellate courts must be accessible to court customers between the hours of 8 a.m. to 4:30 p.m., Monday through Friday (excluding court holidays). At the discretion of the chief judge and the district administrator for the district courts, and the clerk of appellate courts for that office, and after consultation with the State Court Administrator, access to counter services may be provided remotely, by appointment, or in person. Selfhelp services and facilities shall continue to provide services by appointment, remotely, or by telephone.
10. The district and appellate courts shall continue to accept filings in all case types. Unless required by court rule to file through an electronic case filing system, parties shall use U.S. mail, or in the district court, fax, to submit filings; may use a drop box designated by court administration for in-person filings, if available; and if use is authorized by court administration, may submit filings by e-mail. The State Court Administrator is authorized to implement and publish procedures for the payment of fees that are required for documents filed other than through the electronic case filing system or by U.S. mail.
11. For in-person proceedings, access to the courtroom is limited to the parties in the case who are participating in the proceeding, attorneys who represent those parties, any necessary court staff, and other individuals designated by the presiding judge as necessary to the proceeding. All proceedings conducted using remote technology, by ITV, by telephone, or by other remote means are to be conducted in the same manner as an in person proceeding and are governed by the applicable rules of procedure. All proceedings remain subject to the Judicial Branch’s rules that limit or prohibit recordings of proceedings. Other than as provided by paragraph 12 of this order, no person attending a proceeding may record the proceeding or hearing. The only recording permitted is the official recording created by the court.
12. Representatives of the media are permitted to attend in-person proceedings held in courtrooms and to record those proceedings as permitted by court rules, but otherwise do not have access to judicial branch facilities and services, including public access terminals. Unless waived by the presiding judge or a representative of the Court Information Office, requests by media representatives to attend any proceeding, including proceedings held remotely and other than in Hennepin County District Court must be coordinated through the Judicial Branch Court Information Office at least 24 hours before the scheduled time of the proceeding. Media requesting attendance at proceedings in Hennepin County must coordinate with the Hennepin County District Court Information Officer. No recording or broadcasting of any proceeding, whether held in person or remotely, is authorized other than as provided by court rules. It is the intention of this order that judges and court administration may limit the number of persons in attendance at proceedings, including the number of media representatives, in a manner that is consistent with the Judicial Branch’s COVID-19 Preparedness Plan.
13. The State Court Administrator is authorized to implement temporary modifications to Judicial Branch policies and procedures that support the processing of cases pending in the district courts, including temporary adjustments to work assignments based on rieed and availability of Judicial Branch personnel. Judicial Branch employees shall work at the facility or remotely, as directed by the employee’s supervisor.
14. [State Law Library] . . . .

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Minnesota Rule of Criminal Procedure 17.03 

 Joinder of Offenses and of Defendants

Subd. 1. Joinder of Offenses.

When the defendant’s conduct constitutes more than one offense, each offense may be charged in the same charging document in a separate count.

Subd. 2. Joinder of Defendants.

When two or more defendants are charged with the same offense, they may be tried separately or jointly at the court’s discretion. To determine whether to order joinder or separate trials, the court must consider:

(1) the nature of the offense charged;

(2) the impact on the victim;

(3) the potential prejudice to the defendant; and

(4) the interests of justice.

In all cases any one or more of the defendants may be convicted or acquitted.

Subd. 3. Severance of Offenses or Defendants.

(1) Severance of Offenses. On motion of the prosecutor or the defendant, the court must sever offenses or charges if:

(a) the offenses or charges are not related;

(b) before trial, the court determines severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense or charge; or

(c) during trial, with the defendant’s consent or on a finding of manifest necessity, the court determines severance is necessary to fairly determine the defendant’s guilt or innocence of each offense or charge.

(2) Severance from Codefendant because of Codefendant’s Out-of-Court Statement. On a defendant’s motion for severance from a codefendant because a codefendant’s out-of-court statement refers to but is not admissible against the defendant, the court must determine whether the prosecutor intends to offer the statement as evidence during its case in chief. If so, the court must require the prosecutor to elect one of the following options:

(a) a joint trial at which the statement is not received in evidence;

(b) a joint trial at which the statement is only received in evidence after all references to the defendant have been deleted, if the statement’s admission with the deletions will not prejudice the defendant; or

(c) the defendant’s severance.

(3) Severance of Defendants During Trial. The court must sever defendants during trial, with the defendant’s consent or on a finding of manifest necessity, if the court determines severance is necessary to fairly determine the guilt or innocence of one or more of the defendants.

Subd. 4. Consolidation of Charging Documents for Trial.

(a) The court, on the prosecutor’s motion, or on its initiative, may order two or more charging documents to be tried together if the offenses and the defendants could have been joined in a single charging document.

(b) On a defendant’s motion, the court may order two or more charging documents to be tried together even if the offenses and the defendants could not have been joined in a single charging document.

(c) In all cases, the procedure will be the same as if the prosecution were under a single charging document.

Subd. 5. Dual Representation.

When two or more defendants are jointly charged or will be tried jointly under subdivision 2 or 4 of this rule, and two or more of them are represented by the same attorney, the following procedure must be followed before plea and trial.

(1) The court must:

(a) address each defendant personally on the record;

(b) advise each defendant of the potential danger of dual representation; and

(c) give each defendant an opportunity to question the court on the complexities and possible consequences of dual representation.

(2) The court must elicit from each defendant in a narrative statement that the defendant:

(a) has been advised of the right to effective representation;

(b) understands the details of defense counsel’s possible conflict of interest and the potential perils of such a conflict;

(c) has discussed the matter with defense counsel, or if the defendant wishes, with outside counsel; and

(d) voluntarily waives the constitutional right to separate counsel.