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]

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

[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?

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

[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]

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

[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.

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

[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.

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

 

[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.

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

[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).

 

 

 

 

U.S. Reviewing Designation of Cuba as a “State Sponsor of Terrorism”

Since 1982 the United States has had different opinions as to whether Cuba was a “state sponsor of terrorism” under three U.S. statutes—the Export Administration Act (section 6(j)), the Arms Export Control Act (section 40) and the Foreign Assistance Act (Section 620A)—that authorize the Secretary of State to designate countries that “have repeatedly provided support for acts of international terrorism” as “state sponsors of terrorism” and thereby impose sanctions on such countries, including restrictions on U.S. foreign assistance, bans on U.S. defense exports and sales, controls over exports of dual use items and miscellaneous financial and other restrictions.[1]

We will look at these different positions, including the Biden Administration’s current review of the Trump Administration’s last minute designation of Cuba as a “State Sponsor.”

Cuba as “State Sponsor of Terrorism,” 1982-2014[2]

From 1982 through 2014, the U.S. designated Cuba as such a Sponsor.

U.S. Rescinds Cuba’s “Sponsor” Designation, 2015[3]

 On April 14, 2015, Secretary of State John Kerry publicly announced that the State Department had recommended that President Obama rescind the designation of Cuba as a “State Sponsor of Terrorism.” His press release stated that the prior week the “Department submitted a report to the White House recommending, based on the facts and the statutory standard, that President Obama rescind Cuba’s designation as a State Sponsor of Terrorism.”

“This recommendation,” the Statement continued, “reflects the Department’s assessment that Cuba meets the criteria established by Congress for rescission . . . . whether Cuba provided any support for international terrorism during the previous six months, and whether Cuba has provided assurances that it will not support acts of international terrorism in the future.” This conclusion was based, in part, upon “corroborative assurances received from the Government of Cuba.”

Nevertheless, according to the Secretary’s statement, “the United States has had, and continues to have, significant concerns and disagreements with a wide range of Cuba’s policies and actions, [but] these concerns and disagreements fall outside of the criteria for designation as a State Sponsor of Terrorism.”

The same day (April 14, 2015), a White House press release stated the President had “submitted to Congress the statutorily required report and certifications indicating the Administration’s intent to rescind Cuba’s State Sponsor of Terrorism designation.”

That presidential decision was based upon the previously mentioned State Department recommendation that was based on its “careful review of Cuba’s record, which was informed by the Intelligence Community, as well as assurances provided by the Cuban government.”

This White House press release also stated, “As the President has said, we will continue to have differences with the Cuban government, but our concerns over a wide range of Cuba’s policies and actions fall outside the criteria that is relevant to whether to rescind Cuba’s designation as a State Sponsor of Terrorism.  That determination is based on the statutory standard – and the facts – and those facts have led the President to declare his intention to rescind Cuba’s State Sponsor of Terrorism designation.  More broadly, the [U.S.] will continue to support our interests and values through engagement with the Cuban government and people.”

President Obama’s simultaneous message to Congress certified that “(i) the Government of Cuba has not provided any support for international terrorism during the preceding 6-month period; and (ii) the Government of Cuba has provided assurances that it will not support acts of international terrorism in the future.”

U.S. Non-Designation of Cuba, 2016-20[4]

From 2015 through the end of the Obama Administration in January 2017, the U.S. continued to not so designate Cuba as the U.S. and Cuba held several bilateral diplomatic meetings to discuss the many issues that had accumulated ever since the January 1, 1959, takeover of the Cuban government by the Cuban Revolution.

At  their May 2016 Law Enforcement Dialogue, the U.S. State Department said that “law enforcement is an area of mutual interest to both the U.S. and Cuba as we advance toward normalized relations. We anticipate that the dialogue will be productive, and an additional opportunity to reinforce the benefits of law enforcement cooperation. During the dialogue, the United States and Cuba will continue to discuss a wide range of areas of cooperation, including counterterrorism, counternarcotic, transnational crime, cybercrime, secure travel and trade, and fugitives.”

The framework for the dialogue was the May 2016 Memorandum of Understanding between the U.S. Department of Homeland Security and the Cuban Ministry of Interior. This MOU set the basis of cooperation in exchanging risk information for travelers, cargo or conveyances in international transit; the continuation of periodic, mutual, and reciprocal assessments regarding air, sea, and port security; and the coordination of transportation security, screening of cargo, travelers and baggage, and the design of secure, efficient inspection facilities at ports and airports, among other things.

The next month, June 2016,  the U.S. and Cuba met in Havana for their first Counterterrorism Technical Exchange. The State Department said, “Coordination and cooperation on counterterrorism has been one of several important topics discussed in law enforcement dialogues between the United States and Cuba. We welcome the opportunity to bring together technical experts to discuss this topic of common interest.” Afterwards, the Cuban Foreign Ministry said that the meeting was conducted with “respect and professionalism” and that “both parties agreed on the importance of progress in cooperation in this sphere and agreed to continue the meetings of technicians on the topic.”

During the last weeks of the Obama Administration in January 2017, the U.S. and Cuba signed the following four agreements:

  • S.-Cuba Memorandum of Understanding on Law Enforcement “to cooperate in the fight against terrorism, drug trafficking, money laundering and other international criminal activities.”
  • Memorandum of Understanding to strengthen cooperation in the field of maritime and aeronautical search and rescue by enhancing effectiveness and efficiency in assisting persons in distress and to act in furtherance of obligations under international law.
  • S., Cuba and Mexico signed a a treaty to set territorial limits in contested Gulf of Mexico waters. The treaty covers the Eastern Gap of the Gulf of Mexico, an area believed to be rich in oil and gas deposits. The three countries’ overlapping claims in the Eastern Gap had created what is known as a “Doughnut Hole.” Trilateral discussions begun in mid-2016 on the maritime territorial issue were concluded by the end of the year.
  • S. and Cuba memorandum of understanding to help prevent the introduction and spread of quarantine pests, animal and plant disease agents through the exchange of scientific information, best practices for the prevention and control of plagues and emerging diseases, collaborative scientific projects, including the use of technology, research and surveillance, and the holding of events on specific aspects of animal and plant health.

In addition, the Trump Administration for 2016, 2017, 2018, 2019 and 2020  did not designate Cuba as a “State Sponsor of Terrorism.”[5]

Secretary Pompeo’s Re-Designation of Cuba as “Sponsor”[6]

On January 11, 2021 (with only nine days left of the Trump Administration), Secretary of State Pompeo announced that Cuba was being re-designated as a “State Sponsor” to join Iran, North Korea and Syria. Here is what his statement said:

  • “The State Department has designated Cuba as a State Sponsor of Terrorism for repeatedly providing support for acts of international terrorism in granting safe harbor to terrorists.”
  • “The Trump Administration has been focused from the start on denying the Castro regime the resources it uses to oppress its people at home, and countering its malign interference in Venezuela and the rest of the Western Hemisphere.”
  • “With this action, we will once again hold Cuba’s government accountable and send a clear message: the Castro regime must end its support for international terrorism and subversion of U.S. justice.”
  • “For decades, the Cuban government has fed, housed, and provided medical care for murderers, bombmakers, and hijackers, while many Cubans go hungry, homeless, and without basic medicine.  Members of the National Liberation Army (ELN), a U.S.-designated Foreign Terrorist Organization, traveled to Havana to conduct peace talks with the Colombian government in 2017.  Citing peace negotiation protocols, Cuba has refused Colombia’s requests to extradite ten ELN leaders living in Havana after the group claimed responsibility for the January 2019 bombing of a Bogota police academy that killed 22 people and injured more than 87 others.”
  • “Cuba also harbors several U.S. fugitives from justice wanted on or convicted of charges of political violence, many of whom have resided in Cuba for decades.  For example, the Cuban regime has refused to return Joanne Chesimard, on the FBI’s Most Wanted Terrorists List for executing New Jersey State Trooper Werner Foerster in 1973; Ishmael LaBeet, convicted of killing eight people in the U.S. Virgin Islands in 1972; Charles Lee Hill, charged with killing New Mexico state policeman Robert Rosenbloom in 1971; and others.”
  • “Cuba returns to the SST list following its broken commitment to stop supporting terrorism as a condition of its removal by the previous administration in 2015.  On May 13, 2020, the State Department notified Congress that it had certified Cuba under Section 40A(a) of the Arms Export Control Act as “not cooperating fully” with U.S. counterterrorism efforts in 2019.”
  • “In addition to the support for international terrorism that is the basis for today’s action, the Cuban regime engages in a range of malign behavior across the region.  The Cuban intelligence and security apparatus has infiltrated Venezuela’s security and military forces, assisting Nicholas Maduro to maintain his stranglehold over his people while allowing terrorist organizations to operate.  The Cuban government’s support for FARC dissidents and the ELN continues beyond Cuba’s borders as well, and the regime’s support of Maduro has created a permissive environment for international terrorists to live and thrive within Venezuela.”
  • “Today’s designation subjects Cuba to sanctions that penalize persons and countries engaging in certain trade with Cuba, restricts U.S. foreign assistance, bans defense exports and sales, and imposes certain controls on exports of dual use items.”
  • “The United States will continue to support the Cuban people in their desire for a democratic government and respect for human rights, including freedom of religion, expression, and association.  Until these rights and freedoms are respected, we will continue to hold the regime accountable.”

Biden Administration’s Review of Designation[7]

The latest change was announced on February 5, 2021 at press briefing by Ned Price, a State Department spokesperson, said, “[O]ur overall overarching policy when it comes to Cuba, and it’s a policy that will be governed by two principles. First is the support for democracy and human rights. It will be at the core of our efforts through empowering the Cuban people to determine their own future. And second, we believe that Americans, and especially Cuban Americans, are the best ambassadors for freedom and prosperity in Cuba. We’re committed to making human rights a core pillar of our U.S. foreign policy. That certainly applies to Cuba, just as you’ve heard me reference it across the board, and includes redoubling our dedication to human rights throughout our own hemisphere.”

“Despite, human rights defenders around the world continue to look to the United States to – for support against authoritarian regimes. This is one of those issues that we will continue to rally our allies and partners against. And in the administration we’ve also committed to carefully reviewing policy decisions made in the prior administration, including the decision by the outgoing administration to designate Cuba as a state sponsor of terrorism. I wouldn’t want to go into any further details. But as we take a look at this issue into our broader policy with Cuba, those principles will continue to be front of mind.”

In this context, it should be pointed out that there is a serious legal impediment to Cuba’s extraditing  some U.S. fugitives to the U.S.

Conclusion

This blogger strongly supports the Biden Administration’s decision to conduct such a review, as required by statutes, and trust that later it will conclude to rescind this designation.

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

[1] State Dep’t, State Sponsors of Terrorism.

[2] Sullivan, CRS Report for Congress: Cuba and the State Sponsors of Terrorism List (Updated May 13, 2015).

[3] See these posts to dwkcommantaries.com: President Obama Rescinds U.S. Designation of Cuba as a “State Sponsor of Terrorism” (April 15, 2015); U.S. Rescinds Designation of Cuba as a “State Sponsor of Terrorism,” May 29, 2015).

[4]  See thee posts to dwkcommenareis.com: United States and Cuba Hold Second Law Enforcement Dialogue (May 19, 2016); U.S. and Cuba Discuss Counterterrorism Cooperation (June 10, 2016); President Obama Issues Presidential Directive—United States-Cuba Normalization (Oct. 14, 2016); U.S. and Cuba Continue To Implement Normalization of Relations (Jan. 17, 2017); U.S. and Cuba sign Additional Agreements (Jan. 20, 2017).

[5] See, e.g., these posts to dwkcommentaries: No Mention of Cuba in U.S. State Department’s Latest Report on Terrorism (July 22, 2017); No Mention of Cuba in New U.S. Report on Terrorism (Nov. 5, 2019).

[6] State Dep’t, U.S. Announces Designation of Cuba as a State Sponsor of Terrorism (Jan. 11, 2021); Crowley, Augustin & Semple, Pompeo Returns Cuba to Terrorism Sponsor List, Constraining Biden’s Plans, N.Y. Times (Jan. 11, 2021).

[7] State Dep’t, Press Briefing—February 5, 2021; Issues Regarding Cuba and U.S. Extradition of the Other’s Fugitives, dwkcommentaries.com (Feb. 24, 2015); Criticism of the U.S.-Cuba Law Enforcement Agreement, dwkcommentaries.com (Jan. 21, 2017)

 

 

Appellate Rejection of  State’s Appeal of Early Start of Chauvin Trial in George Floyd Criminal Cases   

On February 12 the Minnesota Court of Appeals rejected the State’s appeal of the Hennepin County District Court’s denial of the State’s motion to postpone the start of the  Derek Chauvin trial from March 8 to August 23rd  for joint trial with the other three defendants (Thomas Lane, J. Alexander Kueng and Tou Thau.[1]

The appellate opinion by Presiding Judge Tracy Smith, said the State had not established a basis for our review of the district court’s pretrial orders because it had not shown  that COVID-19 would have a “critical impact” on their ability to prosecute the case and because the Court was “ not persuaded that these discretionary rulings present the type of legal issues that should be reviewed by way of a petition for a writ of prohibition [to delay proceedings], especially in light of the supreme court’s guidance about prosecution pretrial appeals being disfavored and a showing of critical impact being required to obtain appellate review.”

The appellate court also rejected the argument of the defendants/respondents that the State’s appeal was untimely.

The Court of Appeals concluded, “Because we conclude that these appeals must be dismissed, we express no opinion on the merits of the district court’s rulings.”

Prior posts have discussed the battles in the two courts over whether, in light of the Covid-19 Pandemic, there should be one joint trial or two trials and whether the first trial of Chauvin should start on March 8th not on August 23rd.[2]

[1]. Order,  State v. Chauvin, Minnesota Court of Appeals, # A21-0133, A21-0135 (Feb. 12, 2021); Xiong, Court of Appeals won’t intervene in Derek Chauvin trial, StarTribune (Feb. 12, 2021).

[2] See, e.g., Update on Status of Trial Dates in George Floyd Criminal Cases, dwkcommentaries.com (Feb. 4, 2021).

Court Denies Third-Degree Murder Charges for George Floyd Killing

A prior post discussed the  history of third-degree murder charges in these four cases: the May 29 and June 3, 2020 original and superseding complaints against Derek Chauvin included the charge; on October 21, the Court dismissed the charge on the ground that it could be sustained only if the defendant’s actions were not specifically directed at a particular person; on February 4, 2021, the State moved to reassert the charge against Chauvin  (and for the first time against the other three defendants for aiding and abetting)] on the basis of a recent Minnesota Court of Appeals decision; and on February 8 Chauvin opposed the motion.[1]

On February 11, the Hennepin County District Court denied the State’s motion for leave to amend its complaint to assert this charge. [2] This conclusion was justified by the court’s belief that the dissent in the recent Court of Appeals case was correct. “Although the Noor majority opinion is thorough, it is not persuasive in this Court’s view because it departs from the Minnesota Supreme Court’s long adherence to the no-particular -person requirement embedded in the depraved mind element [of the crime].”

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

[1] Prosecution and Chauvin Dispute Adding Third-Degree Murder Charges in George Floyd Criminal Case, dwkcommentaries.com (Feb. 10, 2021).

[2]  Order and Memorandum Opinion Denying State’s Motion To Reinstate or Add Third-Degree Murder Charge, State v. Chauvin, Hennepin County District Court (Dist. Ct. File No. 27-CR-20-12646 Feb. 11, 2021); Xiong, Judge rejects third-degree murder charge against ex-officers in George Floyd case, StarTribune (Feb. 11, 2021).

U.S. Reengages with U.N. Human Rights Council

On February 8, 2021, U.S. Secretary of State Antony J. Blinken announced that the U.S. was reengaging with the U.N. Human Rights Council. Here we will examine that development after first looking at the U.S.’ prior rocky relationship with the Council.

The U.S. Rocky Relationship with the Council

 Creation of the Council.[1]

On March 16,  2006, the U.N. General Assembly adopted a resolution creating the Council to be “responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner; . . . [to] address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon; . . [and to] promote the effective coordination and the mainstreaming of human rights within the United Nations system.”

This work of the Council “shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development.”

That General Assembly resolution also provided “that the Council shall consist of forty-seven Member States, which shall be elected directly and individually by secret ballot by the majority of the members of the General Assembly; the membership shall be based on equitable geographical distribution, and seats shall be distributed as follows among regional groups: Group of African States, thirteen; Group of Asian States, thirteen; Group of Eastern European States, six; Group of Latin American and Caribbean States, eight; and Group of Western European and other States (including the U.S.), seven; the members of the Council shall serve for a period of three years and shall not be eligible for immediate re-election after two consecutive terms.”

The General Assembly vote on this organizing resolution was 170 to 4.

U.S. Non-Involvement with the Council, 2007-2009[2]

In 2006, the U.S.was one of the four negative votes on creating the Council; the others were Israel, the Marshall Islands and Palau while Belarus, Iran and Venezuela abstained. Soon thereafter the State Department announced that it would not be a candidate for membership in the May 2006 first election of members and instead would support other countries with strong human rights records and might run for a seat in 2007. But the U.S. agreed to help finance the Council and pledged to support it.

Among the Republican critics opposing  the panel were Senator Norm Coleman of Minnesota; Senator Richard G. Lugar of Indiana, the Foreign Relations Committee chairman; and Representative Henry J. Hyde of Illinois, who sponsored a bill that would withhold U.S. dues from the United Nations. The opposition was bolstered by President George W. Bush and by John R. Bolton, then the U.S. Ambassador to the U.N., who said, “I believe rather strongly that our leverage in terms of the performance of the new council is greater by the U.S. not running and sending the signal ‘this is not business as usual’ this year than if we were to run.”

When Senator Bill Frist of Tennessee, the majority leader, proposed a resolution on March 31 calling for an American boycott of the new council, Representative Christopher H. Smith of New Jersey, another Republican detractor of the United Nations, put out a statement urging the resolution’s defeat. Human rights groups speculated that the United States was worried that revelations of abuses of detainees in Iraq and of clandestine prisons abroad had raised fears in the George W. Bush administration that it could not get the 96 votes in the 191-member General Assembly needed for election.

This U.S. decision not to support the Council was criticized by Human Rights Watch, and Robert Wexler (Dem., FL), a member of the House International Relations Committee, who said, “This decision reflects the colossal diplomatic failures of Ambassador Bolton. It’s a national disgrace for America that we will not be a presence in guiding and leading that council in a productive direction, and that under Mr. Bolton’s leadership at the U.N., the world’s single superpower cannot muster up the necessary votes to win an election.”

In Fiscal 2009, a provision enacted by Congress prohibited U.S. funding of the Council.

U.S.Involvment with the Council, 2009-18[3]

In 2009, President Barack Obama announced that the U.S. would seek membership in the Council. The U.S. Ambassador to the U.N. at the time, Susan Rice, said “ the decision was made out of a belief “that working from within, we can make the council a more effective forum to promote and protect human rights.”

Thereafter, on May 12, 2009, the U.N. General Assembly elected the U.S. to the Council for a three year-term (2010-12) and on November 12, 2012 re-elected the U.S. for another three-year term (2013-15). However, under the Council’s  term-limitation provision, the U.S. was not eligible for re-election in 2015 for another such term.

But on October 28, 2016, it was elected to another three-year term (2017-19), but it did not complete that term when the U.S. withdrew from membership on June 19, 2018.

U.S. Withdrawal from Council Membership, June 19, 2018[4]

On June 19, 2018, then U.S. Secretary of State Michael Pompeo and U.S. Ambassador to the U.N. Nikki Haley jointly announced that the U.S. was withdrawing from the Council. According to the Secretary, “the Human Rights Council has become an exercise in shameless hypocrisy, with many of the world’s worst human-rights abuses going ignored and some of the world’s most serious offenders sitting on the council itself. The only thing worse than a council that does almost nothing to protect human rights is a council that covers for human-rights abuses — and is therefore an obstacle to progress and an impediment to change.”

These comments were endorsed by Ambassador Haley. “The Human Rights Council has become an exercise in shameless hypocrisy, with many of the world’s worst human-rights abuses going ignored and some of the world’s most serious offenders sitting on the council itself. The only thing worse than a council that does almost nothing to protect human rights is a council that covers for human-rights abuses — and is therefore an obstacle to progress and an impediment to change.”

This withdrawal was severely criticized at the time by Rep. Eliot Engel, the ranking Democratic member of the House Committee on Foreign Affairs, Kenneth Roth, executive director of Human Rights Watch, and others.

Afterwards Ambassador Haley criticized U.S. human rights groups for their failure to support her preceding efforts to reform the Council in the U.N. General Assembly, The response from such groups was pressing the General Assembly for the U.S. proposals would only have invited efforts to weaken the Council from Russia, China and other nations.

The Biden Administration’s Reengagement with the Council, 2021-[5]

On February 8, 2021, U.S. Secretary of State Antony J. Blinken announced that the U.S. was reengaging with the U.N. Human Rights Council. “The Biden administration has re-committed the United States to a foreign policy centered on democracy, human rights, and equality. Effective use of multilateral tools is an important element of that vision, and in that regard the President has instructed the Department of State to re-engage immediately and robustly with the UN Human Rights Council.”

“We recognize that the Human Rights Council is a flawed body, in need of reform to its agenda, membership, and focus, including its disproportionate focus on Israel. However, our withdrawal in June 2018 did nothing to encourage meaningful change, but instead created a vacuum of U.S. leadership, which countries with authoritarian agendas have used to their advantage.”

“When it works well, the Human Rights Council shines a spotlight on countries with the worst human rights records and can serve as an important forum for those fighting injustice and tyranny. The Council can help to promote fundamental freedoms around the globe, including freedoms of expression, association and assembly, and religion or belief as well as the fundamental rights of women, girls, LGBTQI+ persons, and other marginalized communities. To address the Council’s deficiencies and ensure it lives up to its mandate, the United States must be at the table using the full weight of our diplomatic leadership.”

“In the immediate term, the United States will engage with the Council as an observer, and in that capacity will have the opportunity to speak in the Council, participate in negotiations, and partner with others to introduce resolutions. It is our view that the best way to improve the Council is to engage with it and its members in a principled fashion. We strongly believe that when the United States engages constructively with the Council, in concert with our allies and friends, positive change is within reach.”

This decision was criticized by former Ambassador Haley. “If Biden rejoins the council whose membership includes dictatorial regimes & some of the world’s worst human rights violators,” Ms. Haley wrote on Twitter last month, “it will fly in the face of our fight for human rights.” Joining her was a letter from 40 House Republicans, who said the Council was “disproportionately targeting” Israel over other members.

The Council’s current members include longtime U.S. allies such as the U.K., France and Germany. But the roster also includes countries such as China, Russia, Cuba, Somalia, Eritrea, Uzbekistan, Sudan — states that are deemed “not free” in the most recent rankings from Freedom House, an independent watchdog organization.

Conclusion[6]

This blogger concurs in the decision to rejoin the Council. Yes, it has many flaws, but the U.S. as an advocate for human rights needs to be participating in its debates to encourage  greater respect for international human rights. Obviously this blogger rejects the editorial opinion of the Wall Street Journal that a “leading conceit of Joe Biden’s foreign policy is that the U.S. can reform international organizations—and make them live up to their ostensibly noble purposes—simply by showing up. History shows that America’s involvement condones the farce rather than ending it.”

One of the unique procedures the Council has developed to help fulfill its mission is Universal Periodic Review (UPR) of human rights records and issues in every U.N. member (and thus is “Universal”) every 4½ years (and thus is “Periodic”). Each such UPR concludes with recommendations (not orders) for improving human rights from members and Council officers.

As always, comments of agreement or disagreement or elaboration are always appreciated.

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

[1] U.N. Human Rights Council, Welcome to the Human Rights Council; U.N. General Assembly, Resolution 60/251 (Mar. 15, 2006).

[2] Hoge, U.S. Won’t Seek a Seat on the U.N. Rights Council, N.Y. Times (April 7, 2006).

[3] U.N. General Assembly, Election of Human Rights Council Members (12 May 2009); U.N. General Assembly, Election of Human Rights Council Members (12 Nov. 2012).

[4] Harris, Trump Administration Withdraws U.S. From U.N. Human Rights Council, N.Y. Times (June 19, 2018); Harris, Haley Blames Watchdog Groups for U.S. Withdrawal From U.N. Rights Council, N.Y. Times (June 20, 2018).

[5] State Dep’t, Secretary Blinken Press Statement: U.S. Decision To Re-engage with the UN Human Rights Council (Feb. 8, 2021); Hudson, U.S. rejoins U.N. Human Rights Council, reversing Trump Era Policy, Wash. Post (Feb. 8, 2021); Rogers, Biden Administration Moves to Rejoin U.N. Human Rights Council, N.Y. Times (Feb.7, 2021); Chappell, Biden Orders U.S. To Re-engage With U.N. Human Rights Council Immediately, npr-news (Feb. 8, 2021); Assoc. Press, U.S. officials: Biden administration moves to rejoin UN Human Rights Council in another reversal of Trump foreign policies, Wash. Post (Feb. 7, 2021).

[6]  Prior posts have discussed the U.S. and the Council (List of Posts to dwkcommentaries.com—Topical: United States (POLITICS) [“U.S. & U.N. Human Rights Council” section). This blog also has discussed  the Council’s 2018 Universal Periodic Review (UPR) of Cameroon and Cuba (List of Posts to dwkcommentaries.com—Topical: CAMEROON; List of Posts to dwkcommentaries.com—Topical: Cuba [Cuban Human Rights section]. See also Editorial, Hope Over Experience at the U.N. (Feb. 8, 2021).

 

 

As always, comments of agreement or disagreement or elaboration are always appreciated.