Court’s Questionnaire for Prospective Jurors in George Floyd Criminal Cases

On December 22, the Hennepin County District Court published its 14-page Special Juror Questionnaire for the joint trial of the four former Minneapolis policemen involved in the George Floyd killing on May 25th.[1]

The Questionnaire starts with an instruction to “answer all of the questions as completely and honestly as you can” and if “some of your past experiences would be particularly sensitive, traumatic, or embarrassing” mark them PRIVATE , and the judge will consider them “as privately as possible.”

“PART I. KNOWLEDGE OF THE CASE”

The first question is, “What do you know about this case from media reports?” That is followed by eight more questions about the Floyd case and Floyd demonstrations. Questions 2 and 3 ask about “general impressions of the defendants” and Floyd with six options (“Very negative, Somewhat negative, Neutral, Somewhat positive, Very positive, Other”). Each of these two questions is followed by “Why do you feel that way?”

Question 4 asks “Do you, or someone close to you, have any direct or indirect connections with these events?” and “If yes, please explain.”

Question 5 asks “Have you ever watched video of George Floyd’s death on the news or the internet?” And “If yes,” provide more details.

Question 6 asks “Have you ever talked about George Floyd’s death with your family, friends, co-workers, or discussed it online, for example, on social media? If yes, what opinions have you expressed?”

Question 7 asks “Did you, or someone close to you, participate in any of the demonstrations or marches against police brutality that took place in Minneapolis after George Floyd’s death?” If Yes, “explain how much you were involved,” and “ if you participated, did you carry a sign? And “What did it say?”

Question 8 asks “Did you or someone you know get injured or suffer any property damage during the protests that took place after George Floyd’s death?”

Question 9 asks “Do you believe your community has been negatively or positively affected by any of the protests that have taken place in the Twin Cities area since George Floyd’s death?”

Question 10 asks whether “you can put aside [whatever you have heard about the case or your prior opinions} and decide this case only on the evidence you receive in court, follow the law, and decide the case in a fair and impartial manner?”

“Part II. MEDIT HABITS”

This Part asks eight questions about the prospective juror’s sources of news.

“Part III. POLICE CONTACTS”

This Part asks 14 questions regarding the prospective juror’s contacts with the police and whether the individual “supported or advocated in favor of or against police reform” (Q 3); the individual’s “honest opinion” on various issues about the police (Q. 9); whether the individual “had . .. ever been trained on how to restrain someone or use a chokehold” (Q. 10); whether the individual had “any martial arts training or experience” (Q. 11); whether the individual “or anyone close to you, participated in protests about police use of force or police brutality (Q. 12); “How favorable or unfavorable you are about Black Lives Matter” and explain your response (Q. 13); “How favorable or unfavorable are you about Blue Lives Matter?” and explain your response (Q. 14).

“PART V. PERSONAL BACKGROUND”

This Part has 18 questions, the first 11 of which are fairly basic.

Question 12 asks whether the individual or anyone close to you, has “any training or experience (work or volunteer}” in the following areas: Law; Law enforcement; Criminal justice or criminology; Forensic science; Medicine or health care; Counseling, Psychology or Mental Health; and “Civil Rights or Social Justice Issues.”

Question 13 asks whether the individual or anyone close to you has had any of these experiences: “Victim of Crime, Accused of a Crime, Struggle with Drug Addiction” and Question 14 asks whether any of such experiences would “make it difficult for you to be fair and impartial” and “Why.”

Question 15 asks the individual whether you have had any of these court experiences: “served on a jury in a criminal case, served on a jury in a civil case, testified as a witness in a court case, served on a grand jury, worked for the judicial branch.” Question 16 asks whether any of such experiences would “make it difficult for you to be fair and impartial“ in this case?” And if so, “why?”

Question 17 asks for a list of “any hobbies or special interests you have.”

Question 18 asks for identification of all “organizations you have belonged to or in which you participate as an active volunteer or financial supporter.”

“PART V. OPINIONS REGARDING JUSTICE SYSTEM”

1. “Do you believe that the jury system in this country is a fair system? Why or why not?”

2. “Do your believe that our criminal justice system works? Why or why not?”

3. “Would you have any difficulty following this principle of law, under our system of justice?”

• “defendants are presumed innocent of the criminal charges against them.” (Para. 3.)
• “the prosecution has the burden of proving the defendant guilty beyond a reasonable doubt.” (Para. 4.)
• “defendants have the right to remain silent, and if they exercise this right, their silence is not to be used against them.” (Para. 5)
• “the potential consequences of your verdict, including potential penalty or punishment, must not in any way affect the jury’s decision as to whether or not the prosecution has proven the defendant guilty beyond a reasonable doubt.” (Para. 6.)
• “the jury must decide the case solely on the evidence produced in court and the law that the judge instructs, and not because of bias, passion, prejudice, or sympathy.” (Para. 7.)

“PART VI. TRIAL LENGTH AND ABILITY TO SERVE”

1. “The best prediction is that jury selection will last from March 8, 2021 to March 26, 2021. You will have to appear at the Hennepin County Government Center for 1-2 days in that timeframe . . . If you are selected for the jury in this case, you will have to appear every weekday starting March 29, 2021 until trial and deliberations are finished (estimated to be three to four weeks). Is there any significant hardship or reason why you cannot serve during this time period.”
2. “During jury deliberation (And possible for part of the trial), the jury will be sequestered. That means the jury will work into the evenings and taken to a hotel to stay overnight. Is there any reason why you cannot be sequestered overnight?”
3. “Secure parking will be provided for jurors, free of charge. Are you able to drive yourself, or have someone drop you off each day?”
4. “How difficult do you think it will be for you to evaluate graphic photographs or video, including photos and video of a person who has died?”
5. “The jury is told not to read, watch, or listen to news accounts of a trial they are involved in until it is over, and not to talk to anyone,about the case, not even to one another, and to not post anything on social media or elsewhere, including through jury deliberations. Would you find it difficult to follow these instructions for any reasons?”
6. “Is there any reason why you would not be able to give your complete attention to a trial during your time as a juror?
7. “Do you have any religious or philosophical beliefs, which would make it difficult for you to be a juror?”
8. “Do you have any medical, visual, hearing, physical, or other impairment that may affect your ability to serve as a juror on this case?”
9. “Is there any other reason that you could not be a fair and impartial juror in this case? If yes, Please explain.”
10. “Is there anything else the judge and attorneys should know about you in relation to serving on this jury?”
11. “Do you want to serve as a juror in this case? {Yes. No. Not sure.]”
12. “Why do you feel that way about serving as a juror in this case?”

Prior Court Comments About Jury Issues

At the September 11th hearing, the Judge said, “it would be almost cruel to keep . . . [jurors] in on weeks at a time. Instead, he suggested they be “semi-sequestered.” Jurors [will] drive to court each day for deputies to escort them from their vehicles to a secure elevator, have their lunches brought in to the jury room and then have them escorted back to their vehicles. The Judge also said he anticipates jury selection will take two weeks with each prospective juror to take the witness stand for questioning by the attorneys.

At the November5th hearing, the Judge issued the Court’s Order for Juror Anonymity and Sequestration and said there are “strong reasons to believe that threats to jurors’ safety and impartiality exist“ in these cases and that “all reasonable means should be taken to insulate the jury from such ex parte contacts.” Therefore, the Court ordered the “jurors’ names, addresses and other identifying information . .. [to] . . .be kept confidential by the Court and all parties throughout the trial and deliberation” After the conclusion of the trial, any information about the jurors shall be disclosed only after a “subsequent written Order” by the Court.

The Judge added that the jurors will be partially sequestered during trial with possible full sequestration if the partial plan “proves ineffective in keeping jurors free from outside influence.” In addition, during jury deliberations at the end of the trial, there shall be full sequestration

Conclusion

Although the Court did not specially call for comments on this Questionnaire by the attorneys in this case, they clearly have the right to object to any of these proposed instructions or to suggest other instructions. However, this set appears to cover all of the points.

Nor did the Judge indicate when this Questionnaire would be sent to prospective jurors or when their responses would have to be sumitted to the Court.(The listing of this item on the Court’s website, however, states it was “mailed to prospective jurors summonsed.”)

It is interesting that the Judge expects that the trial of the four consolidated cases will start on the previously established date of March 8, 2021 (only 87 days after today, including Christmas and New Year’s Day holidays), that jury selection will take three weeks (March 8-26) and that the trial will take three to four weeks (March 29 to April 16 or 23). Those appear to be optimistic to this bystander.

How would you like to be a prospective or actual juror in this case?

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[1] Special Juror Questionnaire [blank],State v. Chauvin, Dist. Ct. File 27-CR-20-12646 (Dec. 22, 2020),
https://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12646/JurorQuestionnaire12222020.pdf;

Bailey, Potential Jurors in George Floyd Case asked if they support defunding the police, amid concerns about ‘fair and safe’ trial, Wash. Post (Dec. 22, 2020),https://www.washingtonpost.com/national/george-floyd-trial-jury-selection/2020/12/22/a49ae422-44a6-11eb-a277-49a6d1f9dff1_story.html.

[2] Results of 9/11/20 Hearing in George Floyd Criminal Cases, dwkcommentaries.com (Sept. 12, 2020), https://dwkcommentaries.com/2020/09/12/results-of-9-11-20-hearing-in-george-floyd-criminal-cases;

Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing, dwkcommentaries.com (Nov. 5, 2020), https://dwkcommentaries.com/2020/11/05/courts-orders-regarding-criminal-trial-of-defendants-in-george-floyd-killing;

Order for Juror Anonymity and Sequestration, State V. Chauvin, Court File No. 27-CR-20-12646, Hennepin County District Court (Nov. 5, 2020).

Court Affirms Livestreaming of George Floyd Criminal Trial  

On November 5, Hennepin County District Court Judge Peter Cahill ordered that the joint criminal trial of the four defendants—Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thao–subject to the conditions contained in the order, including livestreaming. Thereafter the State objected to livestreaming while it was supported by the Media Coalition. [1]

On December 18, the Judge affirmed its original order for such coverage of the trial and denied the State’s motion to reconsider that order. [2]

The latest order conceded that the Court’s allowing audio and video coverage exceeds that allowed by Minn. Gen. R. Prac 4.02(d), but pointed out that another provision of these rules (1.02) ‘provides that ‘[a] judge may modify the application of [the General Rules of Practice] in any case to prevent manifest injustice.’

The Court concluded this latest order with this statement.  “[T]he State’s suggested procedures to accommodate the Defendants’ Sixth Amendment rights [to a public trial] and the public’s and press’ First Amendment rights to a public trial would be, at best, inadequate, and at worst, mere lip-service to the Defendants’ and the public’s constitutional rights.” (P. 7.)

Conclusion

With this order and the previous order denying the motions for sanctions against the State for alleged deficiencies in discovery, the only pending motions awaiting decision are (i)  Lane’s motion to reconsider joinder of the four defendants for one trial; (ii) the  State’s objection to evidence of Floyd’s prior incident with the Minneapolis police; and (iii) Chauvin and Lane’s objections to the State’s intent to offer evidence of prior incidents involving Chauvin’s alleged use of excessive force.[3]

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[1] Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing, dwkcommentaries.com (Nov. 5, 2020)(order for livestreaming); Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases, dwkcommentaries.com (Nov. 18, 2020)(includes State’s objection to livestreaming); Recent Developments in George Floyd Criminal Cases, dwkcommentaries.com(Dec. 12, 2020)(summary of State’s arguments against livestreaming); George Floyd Cases: Media for Livestream; Chauvin Criticizes State’s Disclosures, dwkcommentaries.com (Dec. 15, 2020).

[2] Order Denying Motions To Reconsider and Amend Order Allowing Audio and Video Coverage of Trial, State v. Chauvin, Dist. Ct. File 27-CR-20-12646 (Dec. 18, 2020); Sawyer, Judge upholds decision to livestream trial of officers in George Floyd killing, StarTribune (Dec. 18, 2020).

[3] Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases, dwkcommentaries.com (Nov. 18, 2020).

Strong Recommendation for New U.S. Policy for Engagement with Cuba

On December 17 a strong recommendation for a new U.S. policy for engagement was put forward by the Center for Democracy in the Americas and the Washington Office on Latin America.[1]

It sets forth the Case for Engagement; the First Nine Months of the Biden Administration (Repairing the Damage); The Second Year [of the Biden Administration] (Taking the Initiative); and Finishing the Job: A Legislative Agenda.

For example, here are the major points of its Case for Engagement that advance the interests of the U.S. and those of the Cuban people:

  • “Engagement begins with constructive diplomacy that includes cooperation on issues of mutual interest and negotiations on issues in conflict.”
  • “Engagement is a more effective strategy to advance the cause of human rights, political liberty, and economic reform.”
  • “Engagement must include civil society—cultural, educational, scientific, and familial linkages that foster mutual understanding, reconciliation, and cultural enrichment for both peoples.”
  • “Engagement will facilitate commercial ties, expanding the market for U.S. businesses, raising the standard of living for the Cuban people, and encouraging economic reform.”
  • “Engagement will serve as a counterweight to the aspirations that global competitors like Russia and China have in Cuba.”
  • “Engagement accomplished in two years more than the policy of hostility achieved in sixty years.”

The Center for Democracy in the Americas is “a non-partisan 501(c )(3) institution dedicated to promoting a U.S. policy toward the Americas based on engagement and mutual respect, fostering dialogue with those governments and movements with which U.S. policy is at adds, and recognizing positive trends in democracy and governance.” It was founded in 2008 by Sarah Stevens.[2]

The Washington Office on Latin America (WOLA) is “ a leading research and advocacy organization advancing human rights in the Americas. We envision a future where public policies protect human rights and recognize human dignity, and where justice overcomes violence. WOLA tackles problems that transcend borders and demand cross-border solutions. We create strategic partnerships with courageous people making social change—advocacy organizations, academics, religious and business leaders, artists, and government officials. Together, we advocate for more just societies in the Americas.”[3]

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[1] Democracy in the Americas,  The United States and Cuba; A New Policy of Engagement (Dec. 17, 2020); Center Democracy in Americas, Joint Press Release. The Washington Office on Latin America and the Center for Democracy in the Americas publish “The United States and Cuba: A New Policy of Engagement” (Dec. 17, 2020); WOLA., The United States and Cuba: A New Policy of Engagement (Dec.2020).

[2] Center for Democracy in the Americas, Our Work.

[3] WOLA, About Us.

Court Issues Order on Expert Disclosures in George Floyd Criminal Cases     

On December 17, Hennepin County District Court Judge Peter Cahill ordered the following:[1]

  • On January 11 at 3:00 p.m. a Zoom remote hearing will be held for consideration of “[v]arious motions by Defendants for continuation of the trial date, attorneys’ fees, and other sanctions for the State’s alleged discovery violations.” (Para. C)
  • By January 15, “All Defendants shall provide initial expert disclosures of experts’ names, curricula vitae and general subject matter on which they will give testimony. (Para. A)
  • By January 19, “the State shall disclose expert reports and findings, and complete written summaries of the subject matter of each expert’s testimony.” (Para. B)
  • By February 8, “Defendants shall disclose expert reports and findings, and complete written summaries of the subject matter of each expert’s findings.” (Para. B)
  • All such expert disclosures “must include all findings, opinion, or conclusions by which each expert is expected to testify; the basis for the findings, opinions and conclusions; and each expert’s qualifications, if not already evident from curricula vitae.” (Para. B.)

On the next day, December 18, the State filed a brief responding to defendant Thao’s motion for sanctions.[2] Its Introduction succinctly says what is amplified in the reset of its pages:

  • “At issue in Thao’s motion are two documents held by the United States Attorney’s Office: notes taken by and FBI agent of an interview of Dr. Baker [the Hennepin County Medical Examiner] and a letter from Dr. Baker, through his legal counsel, clarifying those notes. The State did not initially have possession or control of these documents, but diligently sought to obtain them.” Once the State obtained them, the State promptly disclosed the documents to the defendants in a matter of days.”
  • Although Thao allegedly found out about this purported discovery violation on October 28 [when these two documents were provided by the State, he] filed this motion on December 11, just four days before his December 15 deadline to make expert witness disclosures. . . {Therefore, his] unfounded allegation of a discovery violation appears to be nothing more than cover for a request for more time to meet his discovery violation.”

This skirmish over discovery seems obviated by the above Court order.

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[1]  Order, Expert Witness Disclosure Deadlines and Hearing on Defendants’ Motions for Trial Continuance, State v. Chauvin, Dist. Ct. File 27-CR-20-12646 (Dec. 17, 2020).

[2]  State’s Response to Defendant Thao’s Motion for Sanctions and Hearing Regarding Discovery by State, State v. Thao, Dist. Ct. File NO. 27-CR-20-12949 (Henn. Cty. Dist. Ct. Dec. 18, 2020). Thao’s motion for sanctions is discussed in the fourth section of Recent Developments in George Floyd Criminal Cases, dwkcomentaries.com (Dec. 12, 2020).

George Floyd Cases: Media for Livestream; Chauvin Criticizes State’s Disclosures

In the George Floyd criminal cases, as previously reported, the State has moved for cancelling the livestreaming of the upcoming trial of the four ex-Minneapolis policemen, and Defendant Tou Thao has requested a delay in the trial and sanctions against the State for alleged misconduct in disclosing evidence.[1]

Now Defendant Derek Chauvin adds his voice to criticism of the State’s evidence disclosures and to requesting postponement of the trial. And the Media Coalition along with three of the defendants reiterate their support for the livestreaming of the trial.

Chauvin’s Motion for Continuance[2]

On December 14th Defendant Derek Chauvin moved for a continuance of the trial from March 8th to a date to be established by the Court and of the deadline for him to make initial expert witness disclosures and for the Court to enter “any further relief the court deems just.”

These requests stem from the State’s alleged failure to provide timely discovery disclosures and to have done so in a disorganized and confusing manner, including hiding important documents in unimportant and duplicative materials.

These problems have “caused the defense to spend significant time, material and financial resources to simply organize the materials into a coherent case file,” which will be provided to expert witnesses for the defense. This is especially important for Chauvin because “the global profile of this case has also contributed to the delay in retaining experts willing or able to participate.”

This request was similar to the December 11th motion by Defendant Thao to delay the trial from March 8 to July 5 and for sanctions against the prosecution for its alleged delay in sharing important evidence with the defense.

Media Coalition’s Supports Trial’s Livestreaming[3]

On December 14, the Media Coalition opposed the State’s request for reconsideration of the Court’s previous order allowing audio and video livestreaming of the trial. The Coalition opened this brief with the assertion that “never before, in the history of this country, has there been a criminal trial like the one scheduled in these cases. While there have been big, important cases, few, if any, gave rise to social justice movements the size of what George Floyd inspired. None of them, meanwhile, went to trial at a time when a deadly pandemic had the country in its clutches and when—simultaneously—the country had in its own clutches the technology to livestream a trial around the world.”

According to the Coalition, the Court’s November 4 Order “allowing livestreaming of the trial with certain conditions is a reasonable and appropriate response to these challenging circumstances. Moreover, “Defendants, who have a Sixth Amendment right to a public trial, do not challenge this approach. “

According to the Coalition, the State’s motion for reconsideration of this solution “cites no clash of constitutional principles. . . . Instead, it expresses vague and speculative concerns regarding witnesses’ perceived reluctance to testify if they know cameras are present.” The State relies on Minn. R. Gen. Prac. 4.02, but “in adopting Rule 4.02 as a pilot program in 2015, the Minnesota Supreme Court made clear that ‘[t]he media’s right to be present at public court proceedings as a representative of the public is not at issue here.’”  For the George Floyd cases,  “strict adherence to that rule would violate the First Amendment, which guarantees not just a theoretical right of access but an actual, meaningful right of access.”

Therefore, says the Media Coalition, the Court should deny the State’s motion for reconsideration. this position was supported by Defendants Derrek Chauvin, J. Alexander Kueng and Tou Thao.

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[1] See these posts to dwkcommentaries.com: More Details on 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 11. 2020); Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing (Nov. 5, 2020); Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases (Nov. 18, 2020); Recent Developments in George Floyd Criminal Cases (Dec. 12, 2020).

[2]  Defendant’s Notice of Motion and Motion for Continuance, State v. Chauvin,  Court file No. 27-CR-20-12648 (Hennepin County District Court Dec. 14, 2020); Affidavit of Eric J. Nelson, State v. Chauvin,  Court file No. 27-CR-20-12648 (Hennepin County District Court Dec. 14, 2020); Xiong, Defense attorney in George Floyd case says prosecutors shared disorganized, duplicate evidence, StarTribune (Dec. 14, 2020); Bailey, Former Minneapolis Police Officers in George Floyd killing seek trial delay, Wash. Post (Dec. 14, 2020).

[3]  Xiong, Media coalition pushes back on George Floyd prosecution, asks to livestream trial, StarTribune Dec. 14, 2020); Media Coalition’s Opposition to State’s Motion for Reconsideration of Order Allowing Audio and Video Coverage of Trial, State v. Chauvin, Court File  No. 27-CR-20-12648 (Hennepin County District Court Dec. 14, 2020); Defendant’s Memorandum of Law Opposing the State’s Motion for Reconsideration, State v. Chauvin, Court File No. 27-CR-20-12648 (Hennepin County District Court Dec. 14, 2020); Defendant’s Reply to the State’s Motion To Reconsider Cameras in the Courtroom, State v. Kueng, Court File No.: 27-CR-20-12953 (Hennepin County District Court Dec. 14, 2020); Defense Objection to State’s Motion for Reconsideration, State v. Thao, Court File No. 27-CR-20-12949 Hennepin County District Court Dec. 14, 2020).

 

 

Recent Developments in George Floyd Criminal Cases

Since the filing of criminal charges against four former Minneapolis police officers over the May 25th death of George Floyd there have been many submissions to the court, pretrial hearings and court orders that have been summarized in previous posts.[1]  Now we look at the developments in the cases since November 18.

Kueng’s Supplemental Offer of Proof Regarding Floyd’s 5/6/19 Incident [2]

On November 23, Defendant Kueng submitted records of his attorney’s interviews of four other police officers involved in the May 6, 2019 Minneapolis arrest of Mr. Floyd as an offer of proof to admit evidence of that arrest at trial.

State’s Disclosure of Expert Witnesses [3]

 On November 24, the State of Minnesota disclosed the following potential expert witnesses and reports:

  • Michael Berkow;
  • John J. Ryan,
  • William Louis Manion, M.D.
  • Glenn G. Hardin, MPH, DABFT
  • William Louis Manion, M.D.,
  • S. Charles Schulz, II,
  • Michael M. Baden, M.D.,
  • Theodore C. Chan, M.D.,
  • Sellman Charles Schulz, II, M.D.,
  • Lawson F. Bernstein, Jr., M.D.,
  • Joshua O. Zimmerman,
  • Andrew M. Baker, M.D.,
  • Theodore Chan,
  • Michael M. Baden, M.D.

State’s Arguments Against Livestreaming of Trial [4]

On November 25, the State moved for reconsideration of the order for audio and video coverage of the trial. It made the following points:

  • “The Minnesota General Rules of Practice . . . permit audio or visual recordings of criminal trials, but only if the State and Defendants have consented ‘in writing” or “on the record prior’ to trial.” But at least the State had not so consented.
  • “Moreover, even when the parties consent, the Rules prohibit video and audio recordings of ‘any witness who objects thereto in writing or on the record before testifying.’”
  • Neither the U.S. nor the Minnesota Constitution “requires such recordings.” And the “Sixth Amendment’s core purpose—transparency—can readily be achieved with overflow rooms and closed-circuit cameras. “
  • “[R]ecording and publicly broadcasting witness testimony without consent will cause witnesses to lose their privacy and suffer possible threats of intimidation, and may make it less likely that some witnesses will come forward and testify at trial. “

Defendant Thao Asks for Trial Delay & Sanctions on Prosecution [5]

 On December 11, Defendant Tou Thao’s attorney filed a motion to delay the trial from March 8 to July 5 and for sanctions against the prosecution for its alleged delay in sharing important evidence with the defense.

The motion asserted that the Court’s order of June 30 required the prosecution to share all evidence by August 14, but the prosecution has delayed sharing more than 15,000 pages of evidence over eight separate instances. Most significant was the prosecution’s not providing until October 28 an account of a July 8 interview of Hennepin County Chief Medical Examiner Andrew Baker.. The defense attorney also asked the Court to order the State to pay for the defense attorney’s fees and costs caused by the delays and postpone the defense’s deadline to disclose their expert witnesses.

Dr. Andrew Baker in that July 8 interview described “the mechanism of death as Floyd’s heart and lungs stopping due to the combined effects of his health problems as well as the exertion and restraint involved in Floyd’s interaction with police prior to being on the ground.”  (Emphasis in the brief.)

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[1]  See List of Posts to dwkcommentaries—Topical: George Floyd Killing.

[2]  Defendant’s Supplemental Offer of Proof in Support of Motion To Admit Floyd’s May 6, 2019 Incident, State v. Kueng, Court File No. 27-CR-20-12933 (Hennepin County District Court Nov. 23, 2020).

[3] Supplemental Prosecution Disclosure Pursuant to Rule 9.01, Subd. 1, State v. Chauvin, Court File No. 27-CR-20-12646 (Nov. 24. 2020).

[4] State’s Motion for Reconsideration of Order Allowing Audio and Video Coverage of Trial, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County District Court Nov. 25, 2020);  Xiong, Prosecutors challenge judge’s order allowing livestreamng of George Floyd trial, arguing it could harm testimony, StarTribune (Nov. 30, 3030).

[5] Motion for Sanctions and Hearing Regarding Discovery Violations by the State, State v. Thao, Court File No 27-CR-20-12949 (Hennepin County District Court Dec. 11, 2020); Exhibit 1 to said motion (FBI Memo of Interview of Andrew Baker, MD (09/01/20)); Exhibit 2 to said Motion (Letter, Aug. 7, 2020, Office of Hennepin County Attorney to Assistant U.S. Attorney Jeffrey Paulsen); Defense attorney: Prosecutors in George Floyd case should be sanctioned for delaying sharing evidence, StarTribune (Dec. 11, 2020).

Giving Thanks for Refugees and Other Immigrants 

On Thanksgiving Day 2020 I give thanks for the courage and fortitude of immigrants in my own family and of refugees and other immigrants in the U.S..

Personal Ancestral Immigrants

My earliest immigrant ancestor, to my knowledge, was William Brown (my seventh maternal great-grandfather), who left England as a young boy before 1686 to come to the Massachusetts Bay Colony, eventually settling in Leicester, MA, where he was one of its early settlers and officer of the town in various capacities. [1]

His grandson (my fifth maternal great-grandfather) was Perley Brown, who was born on May 23, 1737 in Leicester, MA, where later he was a Minuteman and then fought for the colonists in the American Revolutionary War at the Battle of Bunker Hill and was killed in the Battle of White Plains, NY under the command of General George Washington.[2]

My first maternal great-grandparents, Sven Peter Johnson and Johanna Christina Magnusson (Johnson), were born and married in Sweden and emigrated to the U.S. sometime before 1881, when their daughter (my maternal grandmother), Jennie Olivia Johnson (Brown), was born on February 28, 1881, in Ottumwa, Iowa.[3]

My paternal first great-grandfather, Johann N. Kroehnke (John Krohnke) was born on November 26, 1839 in Holstein, Prussia and emigrated to the U.S. circa 1867 and denounced Allegiance to the King of Prussia (William I?)  when he applied for U.S. citizenship in Davenport, Iowa on October 9, 1867 and received his U.S. naturalization papers on March 7, 1871. He settled in Benton County, Iowa, where he met Elizabeth Heyer, who was born October 13, 1847 in Krofdorf, Prussia?, but the dates of her arrival in the U.S. and obtaining U.S. citizenship are unknown. The two of them were married on December 26, 1871 in that same Iowa county. Thus, she is my first paternal great-grandmother. [4]

To determine whether there are additional immigrants in my family tree, I need the assistance of Henry Louis Gates, Jr.[5]

Refugees and Other Immigrants

I also give thanks for the courage and fortitude of the millions of refugees and other immigrants who have come to the U.S. and who have become U.S. citizens, a few of whom as a pro bono lawyer I helped obtain asylum as their first step for obtaining U.S. citizenship. I thank them for helping me learn about their personal histories and later introducing me to the moving experience of U.S. naturalization ceremonies, when they obtained their U.S. citizenship. (I also was the pro bono attorney for an Afghan man for his interview for U.S citizenship.)[6]

One such ceremony was in Minnesota in February 2016 when U.S. District Court Judge Donovan Frank before swearing in the new citizens, said, ““We are a better country now than we were five minutes ago. We are better with you than without you.”  The Judge  added that three of his five daughters were naturalized citizens.[7]

Ed Collins of Wilmington, Delaware recently wrote about his attending such a ceremony 35 years ago at San Francisco’s Masonic Temple at the invitation of a friend from college. Collins said he “was stunned upon arrival to see around 150 applicants and 300 or so friends and relatives in the auditorium. A judge led the ceremony supported by a military color guard and a small military band. The judge spoke eloquently about the duties of citizenship as well as its privileges. All joined in lustily singing a number of patriotic songs. Finally, the judge led the applicants in swearing allegiance to the U.S. and then pronounced them citizens of the U.S.”[8]

Collins added, “An amazing roar of cheering, applause, laughing and crying swept the room. I have never seen such a large display of emotion and total joy. That moment led me to understand the value that these good people placed on U.S. citizenship. I urge every American to attend a naturalization ceremony at least once. You won’t look upon U.S. citizenship the same way again, and you won’t take your citizenship for granted.”

Even more inspiring was the December 2015 naturalization ceremony at Washington, D.C.’s Rotunda of the National Archives Museum, where the original Constitution, Declaration of Independence and Bill of Rights are permanently displayed on the 224th anniversary of the ratification of the Bill of Rights. The welcome of the new citizens was given by President Obama. Here are some of his remarks that day:[9]

  • “To my fellow Americans, our newest citizens. You are men and women from more than 25 countries, from Brazil to Uganda, from Iraq to the Philippines.  You may come from teeming cities or rural villages.  You don’t look alike.  You don’t worship the same way.  But here, surrounded by the very documents whose values bind us together as one people, you’ve raised your hand and sworn a sacred oath.  I’m proud to be among the first to greet you as “my fellow Americans.”
  • “Just about every nation in the world, to some extent, admits immigrants.  But there’s something unique about America.  We don’t simply welcome new immigrants, we don’t simply welcome new arrivals — we are born of immigrants.  That is who we are.  Immigration is our origin story.  And for more than two centuries, it’s remained at the core of our national character; it’s our oldest tradition.  It’s who we are.  It’s part of what makes us exceptional.”
  • “And perhaps, like some of you, these new arrivals might have had some moments of doubt, wondering if they had made a mistake in leaving everything and everyone they ever knew behind.  So life in America was not always easy.  It wasn’t always easy for new immigrants.  Certainly it wasn’t easy for those of African heritage who had not come here voluntarily, and yet in their own way were immigrants themselves.  There was discrimination and hardship and poverty.  But, like you, they no doubt found inspiration in all those who had come before them.  And they were able to muster faith that, here in America, they might build a better life and give their children something more.”
  • “We can never say it often or loudly enough:  Immigrants and refugees revitalize and renew America.  Immigrants like you are more likely to start your own business.  Many of the Fortune 500 companies in this country were founded by immigrants or their children.  Many of the tech startups in Silicon Valley have at least one immigrant founder.”
  • “We celebrate this history, this heritage, as an immigrant nation.  And we are strong enough to acknowledge, as painful as it may be, that we haven’t always lived up to our own ideals.  We haven’t always lived up to these documents.”
  • “And the biggest irony of course is that those who betrayed these values were themselves the children of immigrants.  How quickly we forget.  One generation passes, two generation passes, and suddenly we don’t remember where we came from.  And we suggest that somehow there is ‘us’ and there is ‘them,’ not remembering we used to be ‘them.’”
  • “The truth is, being an American is hard.  Being part of a democratic government is hard.  Being a citizen is hard.  It is a challenge.  It’s supposed to be.  There’s no respite from our ideals.  All of us are called to live up to our expectations for ourselves — not just when it’s convenient, but when it’s inconvenient.  When it’s tough.  When we’re afraid.  The tension throughout our history between welcoming or rejecting the stranger, it’s about more than just immigration.  It’s about the meaning of America, what kind of country do we want to be.  It’s about the capacity of each generation to honor the creed as old as our founding:  “E Pluribus Unum” — that out of many, we are one.”
  • “That is what makes America great — not just the words on these founding documents, as precious and valuable as they are, but the progress that they’ve inspired.  If you ever wonder whether America is big enough to hold multitudes, strong enough to withstand the forces of change, brave enough to live up to our ideals even in times of trial, then look to the generations of ordinary citizens who have proven again and again that we are worthy of that.”
  • “That’s our great inheritance — what ordinary people have done to build this country and make these words live.  And it’s our generation’s task to follow their example in this journey — to keep building an America where no matter who we are or what we look like, or who we love or what we believe, we can make of our lives what we will.”
  • “You will not and should not forget your history and your past.  That adds to the richness of American life.  But you are now American.  You’ve got obligations as citizens.  And I’m absolutely confident you will meet them.  You’ll set a good example for all of us, because you know how precious this thing is.  It’s not something to take for granted.  It’s something to cherish and to fight for.”
  • “Thank you.  May God bless you.  May God bless the United States of America.”

Conclusion

Given the recent frequent negative comments about immigrants, especially in the rural areas of the U.S., it would be instructive to have such naturalization ceremonies broadcast live in all parts of the states where they occur. Another source of information and inspiration for all current U.S.  citizens is the recent widespread statements of governors justifying their support for resettlement of refugees in their states. [10]

Pope Francis also provides a religious justification for welcoming, protecting, promoting and integrating refugees and other immigrants.[11]

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

[1] Carol W. Brown, William Brown: English Immigrant of Hatfield and Leicester, Massachusetts and His Descendants, c. 1669-1994, at 1-4 (Gateway Press, Baltimore, MD 1994).

[2] Id. at 17-27.  See also these posts to dwkcommentaries: Watertown, Massachusetts, 238 Years Ago (April 20, 2013); The American Revolutionary War’s Siege of Boston, April 19, 1775-March 17, 1776 (July 27, 2012); The American Revolutionary War’s Battle of Bunker Hill, June 17, 1775 (July 30, 2012); The American Revolutionary War’s Campaign for New York and New Jersey, March 1776-January 1777 (Aug. 13, 2012); The American Revolutionary War’s Battle of Brooklyn (Long Island), August 1776 (Oct. 8, 2012); The American Revolutionary War: The Battle of Harlem Heights, New York, September 1776 (Oct. 10, 2012); The American Revolutionary War: The Battle of White Plains, October 1776 (Oct. 12, 2012). George Edwin Brown and Jennie Olivia Johnson Brown, dwkcommentaries.com (Mar. 17, 2013); n.1 supra at 267.

[4] Hansen, The Heyers From Krofdorf to Keystone at 9, 19 (Amundsen Publishing Co., Decorah, IA 1977).

[5] Finding Your Roots with Henry Louis Gates, Jr., PBS.org.

[6] Becoming a Pro Bono Asylum Lawyer, dwkcommentaries.com (May 24, 2011).

[7] See these posts to dwkcommentaries.com: Naturalized U.S. Citizens: Important Contributors to U.S. Culture and Economy (June 7, 2015); Minnesota Welcomes New Citizens (June 8, 2015); Another U.S. Citizenship Naturalization Ceremony (Feb. 18, 2016).

[8] Collins, Letter: A U.S. Naturalization Ceremony to Remember, W.S.J. (Nov. 23, 2020). Collins was prompted to write his article by reading another about a recent naturalization ceremony attended by Wall Street Journal columnist Jo Craven McGinty. (McGinty, More Green Card Holders Are Becoming U.S. Citizens, W.S.J. (Nov. 13, 2020).)

[9] President Obama Welcomes New U.S. Citizens with Inspiring Challenge, dwkcommentaries.com (Dec. 16, 2015)(contains full text of Obama’s speech).

[10] See these posts to dwkcommentaries.com: U.S. State and Local Governments’ Justifications for Consenting to Resettlement of Refugees (December 31, 2019); Five More States Have Consented to Refugee Resettlement (Jan.7, 2020); U.S. State Governments Celebrate Refugees’ Accomplishments (Feb. 2, 2020).

[11] Pope Francis Reminds Us to Welcome, Protect, Promote and Integrate Refugees and Other Migrants, dwkcommentaries.com (Jan. 1, 2020).

 

 

Pandemic Journal (# 34): Grim Report Lightened by News of Vaccines   

One of the objectives of this Journal is recording what it is like to live during the COVID-19 pandemic. Here is another such report. [1]

Current Status of the Pandemic[2]

The cumulative confirmed pandemic statistics as of November 21-22: the world has 55.6 million cases and 1.36 million deaths; the U.S., 12.2 million cases (the most in the world) and 256,000 deaths; and Minnesota, 262,952 cases and 3,201 deaths.

Minnesota like many other states continues to set record numbers of cases and deaths. As of November 21, the month “is on track to become the state’s deadliest month of the pandemic with 744 fatalities [so far],” accounting for 20% of the state’s total Covid-19 deaths. ” “Colder weather, drier conditions and the movement of people indoors have fueled the spread of the virus” in Minnesota and other states in the Upper Midwest.

This surge has put an enormous strain on hospitals and health care workers. For example, in Minnesota last week 79% of  available ICU beds are filled, and in some parts of the state open ICU beds were down to single digits. “More worrisome are the growing infections among health care workers who then cannot care for patients.”  Many hospitals in the state also do not  have stable supplies of masks and personal protective equipment (PPE) and enacted conservation methods — such as bagging then reusing disposal N95 masks.

On November 18, Minnesota Governor Tim Walz issued a detailed 23-page executive order, effective at the end of November 20 for the next four weeks: continuing the requirement for face masks and social distancing; prohibiting (with certain exceptions) social gatherings of individuals who are not members of the same household; limiting social gatherings to individual households; shutting down bars, restaurants, entertainment venues (movie theaters, museums, bowling alleys and fitness clubs); and pausing amateur sports.

In response to the Governor’s order, the management of our condo building on November 20 announced that “effective at the end of [that day] . . .  all association fitness rooms, indoor pools, community rooms, club rooms, libraries and other similar facilities that are currently open will be closed unless otherwise directed by your Board of Directors.”

This new condo building regulation unfortunately has caused me to cancel a weekly gathering in our entertainment center with two or three other male residents over coffee at a table with distanced chairs. There is no set agenda and instead we just start a conversation that usually lasts 60 to 90 minutes. We thereby learn more about one another and become better friends.

More optimistically, two vaccines with 95% success rates have been announced by two ventures (Pfizer/BioNTech and Moderna), one of which last week was submitted to U.S. federal agencies for emergency approval and this coming week the other is expected to make a similar application. In addition, three other companies (AstraZeneca, Johnson & Johnson and Novaax) are developing other vaccines that are still being tested. Everyone is hoping that the first two of these vaccines will be quickly approved by the federal government agencies and initially distributed to the public in mid-December.

My wife and I continue to be healthy while spending most of our time in our condo, except for trips to buy groceries and other supplies and for walks on nicer days. Yesterday just before the closing of our fitness facilities I walked for one mile in 20 minutes on a treadmill and had exercises in our weight room.  Our Thanksgiving Day will be celebrated in the condo by ourselves.

U.S. Presidential Election [3]

On November 3 the U.S. conducted its presidential election with a total popular vote of 153,628,574, which was 65% of all eligible voters, the highest since 1908.

On November 7 the Associated Press reported that the Democratic ticket (Joe Biden and Kamala Harris) won the election with 79,836,131 and 308 electoral votes while the Republican ticket (Donald Trump and Mike Pence) had 73,792,443 popular votes and 232 electoral votes. Thus, the Democratic margin of victory was 6,043,688 popular votes and 76 electoral votes.

President Trump, however, has refused to accept the above results of the election and has issued many tweets claiming the election was rigged and fraudulent. At his direction, the Republican Party or Campaign Team has commenced many lawsuits challenging the popular election in various states, but all of them have been dismissed or withdrawn with many of the judges castigating the poor legal arguments and the lack of supporting evidence offered by the attorneys for the Republicans. In addition, Trump has been attempting, so far unsuccessfully, to get Republican-controlled agencies in various states to appoint Republican electors to the Electoral College despite their popular vote having been for the Biden-Harris ticket.

As a Biden/Harris voter and as a lawyer interested in the rule of law, I have been, and continue to be, absolutely horrified by Trump’s efforts to steal this election.

In addition, Trump has instructed the official in charge of arranging for the president-elect’s transition to the presidency to refuse the  traditional provision of office space for the president-elect and the transition team and for national security briefings.

There has been a lot of speculation as to Trump’s motivation for not accepting the results of the election and engaging in these efforts to change the result of the election. One is his perceived psychological inability to accept defeat. The other is his realization that he faces immense problems if he is no longer president. One is his personal guaranties of over $300 million of loan liabilities of his various corporations. The other is his potential criminal liability for financial crimes, election-law violations, obstruction of justice, public corruption and partisan coercion. [4]

In any event, the Electoral College, under the Constitution, meets on January 6, 2021 to count the electoral votes and on January 15, the new president is inaugurated.

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

[1] See List of Posts to dwkcommentaries–Topical: Pandemic Journal.

[2} Our World in Data, Statistics and Research: Coronavirus Pandemic (COVID-19);Kumar, 40 more COVID-19 deaths, 7,219 new cases in Minnesota, StarTribune (Nov. 22, 2020); Snowbeck, November already sets record for COVID-19 deaths in Minnesota, StarTribune (Nov. 21, 2000); Howatt, November on track to be Minnesota’s deadliest month for COVID-19., StarTrib. (Nov. 20, 2020); Olson, ‘No beds anywhere’: Minnesota hospitals strained to limit by COVID-19, StarTribune (Nov. 22, 2020); Governor Walz, Emergency Order 20-99 (Nov. 18, 2020); Pfizer, BioNTech Ask FDA to Authorize Their Covid-19 Vaccine, W.S.J. (Nov. 20, 2020); Robbins & Mueller, AstraZeneca Releases Promising Data on Its Coronavirus Vaccine, N.Y. Times (Nov. 23, 2020).

[3] E.g., Riccardi, Biden approaches 80 million votes in historic victory, AP (Nov. 18, 2020); Trump’s legal team cried vote fraud, but courts found none, StarTribune (Nov. 22, 2020); National Archives, Electoral College Timeline of Events

[4] E.g., Choma, Trump Has a Half Billion in Loans Coming Due. They may Be His Biggest Conflict of Interest Yet, Mother Jones (July/August 2020); Mahler, Individual-1, N.Y. Times Magazine at 35 (Nov. 22, 2020); Jacobs, Trump’s post-presidency will be cluttered with potentially serious legal battles, Wash. Post (Nov. 22, 2020).

 

 

 

 

State Court Rejects Chauvin Divorce Settlement

As previously reported, only days after the May 25th killing of George Floyd, Kellie Chauvin filed an action for divorce from her husband, Derek Chauvin, who was a Minneapolis police officer and principal actor involved in that killing. This divorce case was filed in the Minnesota state court in Washington County, where they lived. [1]

In that divorce case it was revealed that the two Chauvins had an agreement whereby Kellie would receive all the equity in their homes in Minnesota and Florida, all of their funds in their bank and investment accounts, and all of Derek’s pension and retirememt accounts except for the non-marital portion of two accounts.[2]

On October 26, the Minnesota state court judge in that divorce case, District Court Judge Juanita Freeman, issued an order stating that the “court has a duty to ensure that marriage dissolution agreements are fair and equitable” and that “one badge of fraud is a party’s transfer of substantially all of his or her assets.” The court, therefore, ruled that their divorce settlement agreement was unenforceable and directed them to submit for the court’s consideration a revised agreement with a balance sheet showing all their assets and liabilities. If there is no revised agreement or if such a revision is not approved by the court, then Judge  Freeman would try and decide the case.

A Minnesota divorce attorney who is not involved in this case said, “This is just speculation, but it’s possible that the [agreement] was intentionally drafted to get assets out of Chauvin’s name in anticipation of a civil judgment against him from the estate of George Floyd.”

Indeed, in July, the attorneys  for the Floyd family filed a civil wrongful death action against Derek Chauvin and the other three police officers involved in the killing, and the lead attorney for the family, Benjamin Crump, said they they would seek “a precedent that makes it financially prohibitive for police to wrongfully kill marginalized people.”[3]

Also before the same state court are charges that the Chauvin couple engaged in tax fraud by failing to submit Minnesota income tax returns for several years and under reported their income.[4]

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

[1] Developments in Criminal Cases Over Death of George Floyd, dwkcommentaries.com (June 28, 2020); Derek Chauvin’s Wife’s Divorce Petition Raises Questions, dwkcommentaries.com (July 8, 2020

[2] Xiong, Judge rejects proposed Derek Chauvin divorce agreement, citing possible fraud, StarTribune (Nov. 20, 2020); Semenov, Proposed divorce agreement between Chauvin and wife rejected for possible fraud, FOX9 News (Nov. 20, 2020).

[3] Floyd’s Family Sues City of Minneapolis and Four Ex-Officers Involved in George Floyd’s Death, dwkcommentaries.com (July 16, 2020); George Floyd Family’s Complaint Against Four Ex-Police Officers Involved in George Floyd’s Death, dwkcommentaries.com (July 17, 2020).

[4] Chauvin and Wife Now Charged with Minnesota Tax Crimes, dwkcommentaries.com (July 22, 2020); Derek Chauvin makes first court appearance on tax fraud charges, Fox9 News (Sept. 8, 2020).

Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases

On November 5, the Hennepin County District Court issued five significant orders regarding the joint criminal trial of Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thao over the killing of George Floyd. These orders (1) granted the State’s motion for a joint trial of the four defendants; (2) preliminarily denied the defendants’ motions for change of venue; (3) provided for  juror anonymity and sequestration; (4) allowed audio and video coverage of the trial; and (5) narrowed its previous order regarding four members of the Hennepin County Attorney’s Office’s participation in the cases.[1]

On November 16, various motions and briefs were submitted objecting to the recent orders for a joint trial and allowing audio and video coverage of the trial as well as the pending motions for allowance of evidence of prior incidents of the four defendants and of Mr. Floyd. The most significant of these papers, in this blogger’s judgment, was Thomas Lane’s motion for reconsideration of the order for a joint trial of the four defendants, which, therefore, will be discussed first.

Lane’s Motion To Reconsider Joinder for Trial[2]

Lane argued that the order for joinder is premature as it does not consider the prejudice that will be caused by admission of evidence of prior incidents involving the other three defendants, none of which involved Lane.

Most significantly, Lane asserted that his  defense will be antagonistic to Chauvin in that he will be “pointing the finger” at Chauvin and that if Lane had known of Chauvin’s prior incidents, Lane would have acted differently. (Emphasis added.) (This is believed to be the first time that any of the defendants has pointed the finger at Chauvin, the principal actor in the death of Floyd.)

Moreover, said Lane’s attorney, the Court’s opinion regarding aiding and abetting liability was erroneous since it was inconsistent with a 2014 opinion of the U.S. Supreme Court, which, among other things, said such liability requires the defendant to have “advance knowledge that a crime is being committed.” (Emphasis added.)[3]

Finally, according to Lane’s attorney, a recently disclosed FBI report about its July 8th interview of Hennepin County Medical Examiner, Dr. Andrew Baker, contains significant points helpful to Lane and the other defendants.. Here are this blogger’s extracts of that report with emphasis on the points helpful to the defendants.

  • Baker’s office’s press release about its examination of Floyd’s body apparently mentioned ”cardiopulmonary arrest,” which “for a lay person would be the stopping of the heart and lungs. Other factors that contributed to Floyd’s cardiopulmonary arrest included hypertension, the presence of fentanyl and methamphetamine, as well as arteriosclerotic heart disease.”(P. 038777) (Emphasis added.)
  • “The term ‘complicating’ in the case title was a medical term meaning occurring after, during, or as a result of.” (P. 03877)
  • Baker defined the mechanism of death as Floyd’s heart and lungs stopping due to the combined effects of his health problems as well as the exertion involved in Floyd’s interaction with police prior to being on the groun” (Pp. 038777-78.) (Emphasis added.)
  • There was no evidence that Floyd’s airway was literally blocked shut. When viewing the body camera footage, the pressure did not appear to be directly over Floyd’s airway. Floyd would have been unable to speak if pressure was directly over his airway.” (P. 03778.) (Emphasis added.)
  • Officer Chauvin’s positioning on Floyd’s body does not fit anatomically with occluding Floyd’s airway.” (P. 038778.) (Emphasis added.)
  • There was no anatomic evidence of injury to Floyd’s neck but that does not rule out that pressure was applied by Chauvin.” (P. 038778.) (Emphasis added.)
  • The absence of petechiae weighs against strangulation.” (P. 038778.) (Emphasis added.)
  • Baker noted that that Floyd had no injury to . . .[his lower buttocks or upper end of Floyd’s thigh which were being held by Kueng].” (P. 038778) (Emphasis added.)
  • Baker noted that there was no relation to Floyd’s cause of death by Lane’s position [on Floyd’s feet].” (P. 038778.) (Emphasis added.)
  • “The struggle between officers and Floyd weighed into Baker’s opinion because physical exertion increases heart rate, releases adrenaline, and increases respiratory rate as well as cardiac demand. All of these things increased the likelihood of a bad outcome.” (P. 038778.)
  • Baker had no opinion on when Floyd became critical or near death.” (P. 038780.) (Emphasis added.)
  • Baker did not believe that the prone position was any more dangerous than other positions based on an article or journal he had read. “ (P. 038780.) (Emphasis added.)
  • Baker could not provide an answer on a ‘but for’ cause [of death]. (P. 038781.) (Emphasis added.)
  • Absent suspicious circumstances, if Floyd had been found dead in his bed with the level of fentanyl in his blood that was present for this autopsy, it may be classified aa fentanyl fatality due to the level of fentanyl.” (P. 039781.) (Emphasis added.)
  • When a death was labeled a homicide, it was not a legal ruling being made. The label was classified as such for public health reasons.” (P. 0388782.) (Emphasis added.)

Parties’ Battle Over Evidence of Defendants’ Prior Incidents[4]

 The State previously had argued for admission of evidence of eight separate incidents involving Chauvin’s actions in the course of his duties as a Minneapolis Police Officer. On November 16 the State submitted a supplemental argument in support of such evidence in light of its obtaining the body worn camera videos for one of those incidents that are relevant to show modus operandi, intent and lack of mistake and rebut any defense of reasonable use of force and that their probative value outweighs any potential unfair prejudice.

Lane’s objection to such evidence was just discussed.

In addition,  Chauvin’s attorney argued that these incidents are inadmissible to show his intent in the Floyd case or his alleged knowledge of the need to move Floyd from the prone position or a common scheme or plan or modus operandi and that evidence of such incidents is cumulative and unfairly prejudicial.

State’s Objection to Evidence of  Floyd’s Prior Incident with Minneapolis Police[5]

All Defendants intend to offer evidence of George Floyd’s May 6, 2019, incident with the Minneapolis Police Department even though the Court at the September 11, 2020, hearing held that such evidence was inadmissible. The State said the Court’s prior decision was correct and that the defendants intend to offer this evidence at trial was for the improper purpose of attacking Floyd’s character and suggesting he had a propensity to commit crimes or should be punished for his prior actions; that the prior incident does not show Floyd’s common scheme or plan in the incident that led to his death; that his state of mind in the prior incident is irrelevant; that the unfair prejudice of evidence of that prior incident far outweighs its probative value and that the defendants’ other arguments for such evidence are unpersuasive.

State’s Objection to Audio and Video Trial Coverage[6]

The State asked the Court for reconsideration of its order for audio and video coverage of the trial. The motion provided no reasons for that motion other than its previous objection to such coverage under Minnesota Rule of Criminal Procedure 4.02(d) and a brief to be filed on or before November 30.

A StarTribune editorial, however, supported this court order. It said, “It is in the best interest of trial participants and the public for this high-profile trial to be as accessible as possible. . . . [Judge] Cahill’s ruling is well-reasoned and fair.”

Reactions

An important reason for the Court’s November 5th order for a joint trial of the four defendants was there was no indication at that stage of the proceedings “that any of the Defendants is likely to be prejudiced by joinder because their defenses are not antagonistic but instead are mutually supportive.” Now, however, Defendant Lane has stated that his  defense will be antagonistic to Chauvin in that Lane will be “pointing the finger” at Chauvin and that if Lane had known of Chauvin’s prior incidents, Lane would have acted differently. This latest statement, therefore, is a serious challenge to the wisdom of a joint trial.

In addition, Lane’s disclosure of the FBI memorandum of its interview of the Hennepin County Medical Examiner, assuming it accurately reflects what the Examiner said, provides boosters for the defense and problems for the prosecution.

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

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

[2]  Defendant’s [Lane’s] Objection to the State’s Spreigl Notice and Motion to Reconsider the Court’s Order for Joinder, State v. Lane, Court File No. 27-CR-20-12951 (Nov. 16, 2020); Exhibit A [FBI Memorandum], Lane Objection to Spreigl and Motion to Reconsider Joinder Order,  State v. Lane, Court File No. 27-CR-20-12951 (Nov. 16, 2020).

[3]  This case was Rosemond v. United States, 572 U.S. 64 (2014), which requires close analysis.

[4]  State’s Supplemental Memorandum of Law in Support of Other Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020); Defendant’s [Chauvin’s] Objection to State’s Proposed Introduction of Spreigl Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020); Defendant’s [Kueng’s]Objection to the State’s 404(b) Evidence, State v. Kueng, Court File No. 27-CR-20-12953 Nov. 16, 2020); Defendant’s [Thao’s] Memorandum in Opposition to State’s Motion for Spreigl Evidence Against Mr. Thao, State v. Thao, Court File No. 27-CR-20-12949 Nov. 16, 2020); Defendant’s [Lane’s] Objection to the State’s Spreigl Notice and Motion to Reconsider the Court’s Order for Joinder, State v. Lane, Court File No. 27-CR-20-12951 (Nov. 16, 2020); Jany, Seeking to show pattern of excessive force by Chauvin, prosecutors cite incident with 14-year-old boy who couldn’t breathe, StarTribune (Nov. 17, 2020);Bailey, Former Minneapolis police officer charged in George Floyd’s death seeks to bar evidence of past neck and body restraints, Wash. Post (Nov. 17, 2020).

[5] State’s Response Opposing Defendants’ Motions To Admit Spreigl Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020).

[6] State’s Motion for Reconsideration, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020) State asks judge to reconsider permission for audio, video coverage of officers’ trial in George Floyd Killing, StarTribune (Nov. 16, 2020); Editorial, A victory for courtroom access in George Floyd case, StarTribune (Nov. 17, 2020).