Federal Criminal Case Over George Floyd Killing: Requests To Sever Chauvin Case from Three Co-Defendants Case 

On April 20, 2021, the  first criminal trial over the killing of George Floyd resulted in a Minnesota state court jury verdict holding former Minneapolis police officer Derek Chauvin guilty on counts of second-degree murder, third-degree murder and second-degree manslaughter.  On June 25, 2021, Minnesota District Court Judge Peter Cahill sentenced Chauvin to 22.5 years imprisonment for these crimes. [1]

Since then the Minnesota state court has handled various issues relating to the Chauvin conviction and sentencing while also preparing for the criminal trial in March 2022 of the other three former Minneapolis police officers involved in the killing of Mr. Floyd (J. Alexander Kueng, Thomas Lane and Tou Thao).[2]

Federal Criminal Cases Over the Killing of George Floyd[3]

In the meantime, on May 6, 2021, the U.S. Department of Justice filed in the U.S. District Court in Minneapolis an indictment against Chauvin and these other three former Minneapolis police officers. These were the charges:

• Count 1 charged Derek Chauvin, “while acting under color of law . . . willfully deprived George Floyd of the right, secured and protected by the Constitution and laws of the United States, to be free from an unreasonable seizure, which includes the right to be free from the use of unreasonable force by a police officer.”
• Count 2 charged Tou Thao and J. Alexander Kueng, “acting under color of law, willfully deprived George Floyd of the right, secured by the Constitution and laws of the United States, to be free from an unreasonable seizure . . . [by failing] to intervene to stop . . . Chauvin’s use of unreasonable force.”
• Count 3 charged all four defendants, “while acting under color of law, willfully deprived George Floyd of the right, secured and protected by the Constitution and laws of the United States, not to be deprived of liberty without due process of law, which includes an arrestee’s right to be free from a police officer’s deliberate indifference to his serious medical needs [when they saw ] George Floyd lying on the ground in clear need of medical care, and willfully failed to aid Floyd, thereby acting with deliberate indifference to a substantial risk of harm to Floyd.”

Also on May 6, 2021, the Department of Justice filed in the federal court in Minneapolis another indictment of Chauvin for alleged use of unreasonable force against a juvenile in 2017. But the other three former Minneapolis policemen were not involved in this case.

Motions To Sever the Federal Chauvin Case from That Case Against the Other Three Ex-Cops[4]

As of August 4, 2021, the docket sheet for the federal case over the killing of Mr. Floyd had 104 entries, almost all of which are preliminary matters not requiring comments here.

However, on August 3, defendants Thao, Kueng and Lane filed motions to sever their cases from the one against Chauvin, Thao’s motion had the following most extensive statement pf reasons for severance:

1. The defendants were “not properly joined under Rule 8(b) of the Federal Rules of Criminal Procedure,” which allows charging “2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.”
2. “The jury will have insurmountable difficulty distinguishing the alleged acts of each defendant from the alleged acts of his co-defendants.”
3. ”Evidence may be introduced by each defendant which would be inadmissible against other defendants in a separate trial to the prejudice of these defendants.”
4. “The counts of the indictment are not properly joined under Rule 8(a) of the Federal Rules of Criminal Procedure,which allows charging “a defendant in separate counts with 2 or more offenses if the offenses charged—whether felonies or misdemeanors or both—are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.”
5. “Mr. Thao’s Fifth Amendment right to not incriminate himself will be prejudiced by the joinder of the counts.”
6. “Evidence which would be inadmissible were the counts tried separately, may be admitted and considered by the jury to the prejudice of Mr. Thao.”
7. “The jury will have insurmountable difficult distinguishing evidence presented on one count from that evidence presented on other counts, and will inevitably consider the evidence cumulatively.”
8. “Mr. Thao will obtain a fair and more impartial Trial [if] he is tried separately from his co-defendants.”

As other filings however, make clear, the U.S. opposes the severance motions but agrees to abide by any order the Court may issue on these motions. However, “a decision on severance is pre-mature,” and all parties “jointly ask that [these] motions[s] be reserved until a point in the future when information relevant to severance of Mr. Chauvin becomes more developed.[5]

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[1] Derek Chauvin Trial: Week Seven (CONVICTION), dwkcommenbtaries.com (April 21, 2021); Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment, dwkcommentaries.com (June 28, 2021).

[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);  Bailey, Trial for 3 former officers charged in George Floyd murder delayed until March, Wash. Post (May 13, 2021); Furber, Judge Delays Trial for Other Officers Charged in Killing of George Floyd, N.Y. Times (May 13, 2021).

[3] Federal Court Charges Against Ex-Minneapolis Policemen Over George Floyd’s Killing, dwkcommentaries.com (May 7, 2021); Federal Criminal Cases Against Ex-Minneapolis Copes for George Floyd Death: Initial Proceedings, dwkcommentaries.com (June 2, 2021).

[4] Forliti (AP), Ex-cops charged in Floyd death want separation from Chauvin, StarTribune (Aug. 3, (2021); Xiong, Former Minneapolis officers request separate federal trial from Derek Chauvin, StarTribune (Aug. 3, 2021); Motion for Severance. United Sates v. Thao, U.S. Dist. Ct., Dist. Minn. File No. 21-CR-108(2) (Aug. 3, 2021); Defendant’s Pretrial Motion for Severance of Derek Chauvin (Defendant 1), U.S. v. Kueng, U.S. Dist. Ct., Dist. Minn. File No. 21-CR-108(2) (Aug. 3, 2021); Motion To Join Co-Defendants Pretrial Motions, U.S. v. Lane, U.S. Dist. Ct., Dist. Minn. File No. 21-CR-108 (Aug. 3, 2021).

[5] Defendant’s Meet and Confer Notice, U.S. v. Kueng, U.S. Dist. Ct., Dist. Minn. File No. 21-CR-108(2) Aug. 3, 2021.See generally List of Posts to dwkcommentaries—Topical: George Floyd Killing.