Chauvin Out of Prison on Bail 

On October 4, Chauvin posted a $1 million bond and was released from Minnesota state prison on charges of murder and manslaughter of George Floyd on May 25th in Minneapolis. The conditions of his release include “that he remain law abiding, that he not have any contact with Floyd’s family, that he not work in law enforcement or security, that he surrender any firearms and licenses to carry, that he remain in Minnesota under court supervision, and that he sign a waiver of extradition upon his release.”  His three co-defendants—Thomas Lane, J. Alexander Kueng and Tao Thou—already had  posted bond (in smaller amounts) and had been released from jail. [1]

As reported in a comment to the earlier post about Chauvin and his wife being charged with Minnesota tax crimes, on September 8, Chauvin appeared remotely from state prison at a hearing on the state tax evasion charges before Judge Sheridan Hawley, Washington County District Court, Stillwater, Minnesota.[2]

The Judge ordered that if Chauvin were to post bail and be released from state prison on his charges of murder and manslaughter of George Floyd, he would not be required to post monetary bail on the tax evasion charges, but he would have to comply with standard conditions, including attending all future court dates and remain law-abiding. The Judge also set the next hearing in this case for October 30.

Protestors[3]

That same night about 300 people marched peacefully from the site of Floyd’s killing (East 38th Street and Chicago Avenue) a few blocks north towards downtown and then back. At one point they stopped to chant, “No justice, no peace.”

Later, 34 people who had veered away from the earlier protest were arrested for unlawful assembly near the Fifth Precinct police headquarters at 3101 Nicollet Av. by officers from the state Department of Natural Resources and the State Patrol, the Minnesota Department of Public Safety disclosed Thursday morning.

These law enforcement officers had been activated out of an abundance of caution by Minnesota Governor Tim Walz at the request of Minneapolis Mayor Jacob Frey. But there were no large or violent protests.

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

[1]  Xiong, Chauvin posts $1 million bond and is released pending trial for murder in the killing of George Floyd, StarTribune (Oct. 7, 2020); Bailey, Former Minneapolis police officer Derek Chauvin released on bond as he faces trial in George Floyd’s death, Wash. Post (Oct. 4 , 2020); Bogel-Burroughs, Derek Chauvin, Ex-Officer Charged in George Floyd’s Death, Released on Bail, N.Y. Times (Oct. 4, 2020).

[2] Olson, Chauvin appears in court on tax evasion charges, StarTribune (Sept. 9, 2020): Comment: Chauvin Appears in State Court on Tax Evasion Charges (Oct. 4, 2020) to Chauvin and Wife Now Charged with Minnesota Tax Crimes, dwkcommentaries.com (July 22, 2020).

[3] Xiong, Derek Chauvin posts $1 million bond and is released pending trial for murder in the killing of George Floyd, StarTribune (Oct. 8, 2020); Simons, Dozens of protestors arrested during faceoff with law enforcement in Minneapolis, StarTribune (Oct. 8, 2020); Skiuzacek, Walz activates Minnesota National Guard to help keep peace in Twin Cities, 5 Eyewitness News (Oct. 7, 2020).

 

Pandemic Journal (# 31): What Will Be the New Normal?

The COVID-19 Pandemic has been so long and so thoroughly disruptive to what used to be our “normal” lives, we wonder what life will be like after the pandemic is over. Will it be a return to what we thought was “normal.”? I think not. We will start to engage in a new way of life with details to be negotiated among all people and institutions.

This was the point recently made by Fareed Zakaria.[1]

Zakaria’s Vision for the New World

The world that is being ushered in as a consequence of the covid-19 pandemic is new and scary. The health crisis has accelerated a number of forces that were already gathering steam. Most fundamentally, it is now blindingly clear that human development as it is happening now is creating ever-greater risks. The backlash from nature is all around us, from wildfires to hurricanes to pandemics, of which covid-19 may simply be the first in a series. The pandemic has intensified other trends, too. For demographic and other reasons, countries will likely see more sluggish economic growth. Inequality will get worse, as the big get bigger in every sphere. Machine learning is moving so fast that, for the first time in history, human beings might lose control over their own creations. Nations are becoming more parochial, their domestic politics more isolationist. The United States and China are headed toward a bitter and prolonged confrontation.” (Emphases added.)

“It is a dangerous moment. But it is also in times like these that we can shape and alter such trends. To complete the story of our future, we must add in human agency. People can choose which direction they want to push themselves, their societies and their world. In fact, we have more leeway now. In most eras, history proceeds along a set path and change is difficult. But the novel coronavirus has upended society. People are disoriented. Things are already changing and, in that atmosphere, further change becomes easier than ever. . . .” (Emphases added.)

“We could continue with business as usual and risk cascading crises from climate change and new pandemics. Or we could get serious about a more sustainable strategy for growth. We could turn inward and embrace nationalism and self-interest, or we could view these challenges — which cross all borders — as a spur to global cooperation and action. We have many futures in front of us. . . .” (Emphases added.)

The current pandemic presents . . . choices. We could settle into a world of slow growth, increasing natural dangers and rising inequality — and continue with business as usual. Or we could choose to act forcefully, using the vast capacity of government to make massive new investments to equip people with the skills and security they need in an age of bewildering change. We could build a 21st-century infrastructure, putting to work many of those most threatened by new technologies. We could curb carbon emissions simply by placing a price on them that reflects their true cost. And we could recognize that, along with dynamism and growth, we need resilience and security — or else the next crisis could be the last. . . .” (Emphasis added.)

The . . . tension between integration and isolation can be seen throughout the world. The pandemic is leading countries to look inward. But enlightened leaders will recognize that the only real solution to problems such as pandemics — and climate change and cyberwar — is to look outward, toward better cooperation. The solution to a badly funded and weak World Health Organization is not to withdraw from it in the hope that it withers away, but rather to fund it better and give it more autonomy so that it could stand up to China — or the United States — if a health emergency requires it. No single country can organize the entire world anymore. None wants to. That leaves only the possibilities of chaos, cold war, or cooperation.” (Emphasis added.)

“It is true, as the critics charge, that real international collaboration requires some element of collective decision-making. While it sounds sinister to some ears, it is, in fact, what countries do all the time. It is the mechanism by which we regulate everything from international telephone calls to air travel to trade and intellectual property to the emission of chlorofluorocarbons. There is no global “one world government,” and there never will be — it is just a phrase designed to scare people into imagining a secret army descending on them in black helicopters. What actually exists, and what we need more of, is global governance, agreements among sovereign nations to work together to solve common problems. It shouldn’t be so hard. Cooperation is one of the most fundamental traits in human beings, one that many biologists believe is at the root of our survival over the millennia. If we are to survive well into the future, cooperation will surely help us more than conflict.” (Emphases added.)

The imperative for cooperation is nowhere more evident than in the relationship between the world’s two greatest powers, the United States and China. We are entering a bipolar world — characterized by a reality in which two countries are simply head-and-shoulders above the rest in hard power. . . .” (Emphasis added.)

“The pandemic has made so many — nations and individuals — turn inward and become selfish. But an even larger crisis had the opposite effect on the greatest statesmen of the age. Twenty years after D-Day, CBS News invited the former supreme commander of the Allied operations, Dwight D. Eisenhower, to revisit the beaches of Normandy with Walter Cronkite and reflect. Eisenhower had seen the worst of humanity — the German Wehrmacht’s brutal fight to the finish — and yet, he had come out of that experience determined to try cooperation. As they sat overlooking the rows of graves in Normandy, Eisenhower said to Cronkite, “These people gave us a chance, and they bought time for us, so that we can do better than we have before. So every time I come back to these beaches, or any day when I think about that day 20 years ago now, I say once more, we must find some way to work to peace, and really to gain an eternal peace for this world.” (Emphasis added.)

“So, too, in our times, this ugly pandemic has created the possibility for optimism, change and reform. It has opened a path to a new world. It’s ours to take that opportunity or to squander it. Nothing is written [beforehand about what we should do].” (Emphasis added.)

Reactions

I concur in the need for more international cooperation on a multitude of issues.

In addition, the pandemic has shown the many deficiencies in the U.S. Everyone needs basic health insurance that is not tied to a specific employer which means if an individual is fired or laid off due to an economic downturn or another pandemic, the individual loses health insurance. We need a huge revision of the federal income tax laws to eliminate loopholes and other provisions that benefit only the super wealthy. We need to do something about income and wealth inequality. We need to have one federal election system that guarantees and enforces the right to vote for every U.S. citizen who is over 18 years of age, stops gerrymandering, and eliminates the electoral college and the equal representation of states regardless of population in the U.S. Senate. We need to eliminate racism and sexism in our institutions and society. Those are starters for a new normal.

An invitation is extended to readers of this blog to express their desires for a “new normal” after we get through this pandemic.

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[1] Zakaria, The pandemic upended the present. But it’s given us the chance to remake the future, Wash. Post (Oct. 6, 2020). This article is adapted from Zakaria’s new book, Ten Lessons for a Post-Pandemic World (W.W. Norton & Co. 2020).

Additional Developments in George Floyd Criminal Cases

Developments in the four criminal cases over the killing of George Floyd through September 18, have been discussed or cited in a previous post.[1] Here are the further developments in the cases over the last two weeks.

Change Venue To Protect Defendants’ Safety [2]

The most significant development has been J. Alexander Kueng’s attorney’s October 1st argument that the case should be moved from Hennepin County to another county in order to protect the defendants’ safety. The following was the asserted factual basis for this supplemental argument:

  • For the September 11th hearing, “no recognizable plan was in place in advance of the hearing to assure the safe and orderly entry of CoDefendants or Co-Counsel into the courthouse.”
  • “ Chauvin, who is in custody, was subjected to a degree of humiliation by being paraded in public dressed in jail cloths and body armor.”
  • “Attorneys and Defendants were harassed upon arrival and departure from the courthouse.”
  • Attorneys “ Paule and Mr. Thao were followed for several blocks by jeering protestors when departing. . . .[Attorneys] Gray, Plunkett, and their respective clients were harassed. Gray and Lane were physically assaulted.”
  • “A privately owned vehicle sustained nearly $2,000.00 worth of damage from the violent rioters.”
  • “A rioter also used video from the event to dox [slang: publishing the private personal information of another person] one of the parties.”
  • https://en.wikipedia.org/wiki/Doxing
  • “Before leaving the courthouse, counsel conferred with court security to get advice on how they should safely leave the area. Court security suggested they wait until after The Floyd family and their attorney had addressed the crowd. This advice did not make sense, and, if followed, caused greater concern for attorney and client safety. Counsel rightfully believed that these speeches would incite the crowd making their departure far more risky and tempt rioters to storm the courthouse.”

Under Minnesota Rules of Criminal Procedure, the defense attorney argued, “a change of venue may be granted in the interests of justice,” and under cited Minnesota Supreme Court cases, “Where there is reason to believe that it will be impossible to obtain a fair and impartial trial in the county selected because of local prejudices, feelings, and opinions, the ends of justice require that a change of venue be granted.”

If the trial were held in Hennepin County, said the defense attorney, “the jury will be influenced by the screaming and yelling of the crowds that could be heard from the first floor during the motions hearing. . . . Witnesses will be intimidated as they have to walk the gauntlet before they testify. Defense witnesses will be reluctant to testify if providing exculpatory evidence will subject them to rioting, assaults and dox attacks.”

“The defendants have to reasonably question whether the chants and crowds will impact the decisions of the judge and jury in their case as the people that will decide their case pass through the rioters during weeks of trial.”

“The defendants and their lawyers cannot safely enter and exit the courthouse. Parties were physically assaulted after a simple motions hearing. During trial, tensions are going to be even higher. The lawyers will be carrying notebooks, computers, law books and other materials to help defend their clients, which will make it more difficult for them to avoid the angry crowds.”

“As demonstrated by the September 11th hearing, the Court simply cannot control the rioters and protesters who have taken to the streets of Minneapolis. This Court must grant a change of venue to a county where the defendants can obtain a fair trial free from the riots and crowds that will occur if he is tried in Hennepin County.”

Presumably the other three defendants will support this argument and the State will attempt to counter it, presumably be identifying security measures that will be imposed.

Prior Acts of Chauvin, Kueng and Thao [3]

Another significant development was the State’s notice of intent to offer evidence of eight other instances of Chauvin’s alleged use of force to prove his intent, knowledge;  common scheme or plan and modus operandi; one instance of Kueng’s use of force to prove knowledge and intent; and nine instance of Thao’s conduct to prove expediency, dishonesty and refusal to respond to training.

The State also said it intends prior to trial to file a separate memorandum in support of the admission of this evidence and that it “may offer evidence of other acts, instances of specific conduct, and prior convictions” of the defendants.”

The defendants have not yet responded to this notice, except in their additional arguments against joinder of the cases for trial, as discussed below.

Additional Arguments Against Joinder of Cases for Trial [4]

As previously discussed, the court at the September 11 hearing heard arguments for and against the State’s motion to join all four cases for one trial. Now two of the defendants have submitted additional opposing briefs.

Chauvin’s attorney argued that the State’s intent to offer evidence of eight prior acts of Chauvin and of prior acts of two of the other defendants (Kueng and Thao) demonstrates that “a majority of the evidence will not be admissible against all defendants” and, therefore, contradicting the State’s argument for joinder. In addition, Chauvin would be prejudiced by the other defendants attempts to blame Chauvin.

Kueng’s attorney argues that the State’s intent to use evidence of prior bad acts by Chauvin and Thao would prejudice Kueng because such evidence could be used against Kueng and he could use the evidence in a manner in which the State would be prohibited.

Thomas Lane Case  [5]

Lane’s attorney noticed his intent to offer evidence of Lane’s good character in a January 2020 encounter with a homeless Black individual in a wheelchair.

Alexander Kueng Case [6]

In addition to his previously mentioned additional argument for change of venue, Kueng has filed an appeal to the Minnesota Court of Appeals from the district court’s denial of his request for public funding of fees for services other than counsel.

 Press Articles about Defendants [7]

There also have been press articles about the defendants.

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

[1] See Developments in George Floyd Criminal Cases, dwkcommentaries.com (Sept. 19, 2020).

[2] Supplemental Memorandum Notice of Motion and Motion To Change Venue, State v. Kueng, Court File No.: 27-CR-20-12933 (Hennepin County Dist. Ct. Oct. 1, 2020); Olson, Crowd swarms former Minneapolis police officers with shouts of ‘Murderer!’, StarTribune (Sept. 11, 2020); Forliti, Lawyer: Unruly crowd warrants venue change in Floyd case, StarTribune (Oct. 1, 2020); Xiong, Protesters assaulted former officer charged in George Floyd’s killing and defense attorney, court filing alleges, StarTribune (Oct. 2, 2020). 

[3] State’s Amended Notice of Intent To Offer Other Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Sept. 25, 2020).

[4] Defendant’s [Kueng’s] Memorandum—Effect of the State’s Spreigl Notice of Joinder, State v. Kueng, Court File No.: 27-CR-20-12953 (Hennepin County District Court Sept.25, 2020); [Chauvin’s} Memorandum of Law Regarding the Effect of the State’s Spreigl Notice of Its Joinder Motion, State v. Chauvin, Court File No.: 27-CR-20-12646 (Hennepin County District Court Sept.25, 2020).

[5] Defendant Thomas Lane Notice of Intent To Offer Character Evidence, State v.Lane, Court File No.: 27-CR-20-12951 (Hennepin County District Court Sept. 30, 2020).

[6] Appellate Notice of Case Filing, State v. Kueng, Court File No.: 27-CR-20-12953 (Hennepin County District Court Sept. 22, 2020 27-CR-20-12953 (Hennepin County District Court Sept. 22, 2020); Appellate Notice of Court Filing, State V. Kueng, File #27-CR-20-12953 (Minn. Ct. App. Sept. 22, 2020); Request for Trial Court Record-Appellate Court, State v. Kueng, File A20-1225 (Minn. Ct. App. (Sept. 24, 2020); Appellate Exhibit List, State v. Kueg, Court File No.: 27-CR-20-12953 (Hennepin County District Court Sept.25, 2020).

[7] Chanen, Trouble signs showed up early in the career of fired Minneapolis police officer Tou Thau. StarTribune (Sept. 26, 2020); Xiong, [Kueng’s] Former officer’s failure to stop the deadly restraint of George Floyd leaves friends perplexed, StarTribune, StarTribune (Sept. 13, 2020).

U.S. Reduces Refugee Admissions to 15,000 for Fiscal 2021

On September 30, 2020, the U.S. State Department announced that President Trump will be submitting to Congress a report that he has determined that the U.S. will reduce its refugee admissions for Fiscal 2021 (October 1, 2020—September 30, 2021) to 15,000. [1]

It must be understood that the individuals who will be admitted to the U.S. under this quota already have been vetted and determined by a U.N. agency to have met the international and U.S. legal definition of “refugee:” someone who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”[2]

The State Department attempted to reduce the adverse humanitarian consequences of this reduction by claiming, “The United States is committed to achieving the best humanitarian outcomes while advancing our foreign policy interests.  Given the dire situation of nearly 80 million displaced people around the world, the mission of American diplomacy is more important than ever.”

Other points of this attempt to reduce the adverse consequences of this decision are the following:

  • “In line with the U.S. National Security Strategy, we are working to assist refugees and other displaced people as close to their homes as possible until they can safely and voluntarily return to rebuild their lives, their communities, and their countries.  As part of our longstanding leadership in international humanitarian crisis response, the United States provided more than $9 billion in humanitarian assistance in Fiscal Year 2019 and nearly $70 billion in humanitarian assistance over the past decade.”
  • “The President’s proposal for refugee resettlement in Fiscal Year 2021 reflects the Administration’s continuing commitment to prioritize the safety and well-being of Americans, especially in light of the ongoing COVID-19 pandemic.  It accounts for the massive backlog in asylum cases – now more than 1.1 million individuals – by prioritizing those who are already in the country seeking humanitarian protection.  It also accounts for the arrival of refugees whose resettlement in the United States was delayed due to the COVID-19 pandemic.”
  • “Refugee resettlement is only one aspect of U.S. humanitarian-based immigration efforts.  Since 1980, America has welcomed almost 3.8 million refugees and asylees, and our country hosts hundreds of thousands more people under other humanitarian immigration categories.  This year’s proposed refugee resettlement program continues that legacy with specific allocations for people who have suffered or fear persecution on the basis of religion; for Iraqis whose assistance to the United States has put them in danger; for refugees from El Salvador, Guatemala, and Honduras; and for refugees from Hong Kong, Cuba, and Venezuela.” (Emphasis added.)

The State Department continued, The President’s proposal for refugee resettlement in Fiscal Year 2021 reflects the Administration’s continuing commitment to prioritize the safety and well-being of Americans, especially in light of the ongoing COVID-19 pandemic.  It accounts for the massive backlog in asylum cases – now more than 1.1 million individuals – by prioritizing those who are already in the country seeking humanitarian protection.  It also accounts for the arrival of refugees whose resettlement in the United States was delayed due to the COVID-19 pandemic.” (Emphasis added.)

According to the State Department, the U.S. anticipates receiving 285,000 asylum requests in the upcoming fiscal year. Such applications must meet the previously mentioned international and U.S. definition of “refugee.” However, the Department’s statement admits the U.S. has a  “massive backlog in asylum cases – now more than 1.1 million individuals.”

After criticisms of this decision emerged from various groups that are discussed below, Secretary of State Michael Pompeo from Rome tried to defend this decision. He said, “We continue to be the single greatest contributor to the relief of humanitarian crisis all around the world, and we will continue to do so. Certainly so long as President Donald Trump is in office, I can promise you this administration is deeply committed to that.”

Reactions [3]

This establishment of a 15,000 quota for refugees is a 3,000 reduction from last year’s quota of 18,000, which was the lowest since the introduction of the U.S. refugee program in 1980. In contrast, in Fiscal 2017, the last full year of the Obama Administration, the quota was 85,000 while the Trump Administration’s first two years (Fiscal 2018 and 2019) set the quotas at 53,000 and 30,000.

This further reduction is seen as another point of President Trump’s “anti-immigrant themes in the closing month of his re-election campaign.” It was done as the President was “unleashing a xenophobic tirade against one of the nation’s most prominent refugees, Representative Ilhan Oma, on Wednesday night at a rally in her home state of Minnesota.”

According to a Washington Post columnist, Catherine Rampell, this presidential decision “in one fell swoop, . . .managed  to betray his country’s humanitarian interests, its national security interests, its economic interests and even his own narrow political interests to boot. . . . The only constituency helped by Trump’s latest cruelty are the bigots and knee-jerk nationalists crafting his policies. For the rest of us, it represents an incalculable loss.”

As anticipated, refugee advocacy groups condemned this decision.

  • Krish O’Mara Vignarajah, CEO of Lutheran Immigration and Refugee Services, called the 15,000 cap an “abdication” of the nation’s humanitarian leadership role in the world. “This absurdly low number is based on nothing more than xenophobic political pandering, and it’s no surprise that this all-time low comes during an election year. We have shown as we have resettled thousands of refugees that there’s no evidence any of these arrivals have endangered Americans. Refugees come to this country after the most extreme vetting procedures, including medical-health checks.”
  • The Immigrant Law Center of Minnesota’s Executive Director, Veena Iyer, said, “Slashing refugee numbers and refusing admission to desperate people whose lives are in danger, especially those whose lives are in danger because of their service to U.S. soldiers and peacekeepers, is appalling. Instead of leading the world in protecting the persecuted, the actions of this administration are an abdication of leadership.”
  • Oxfam America’s Isra Chaker said, “This inexcusable new admissions ceiling is a mere fraction of the number of refugees the United States can and should resettle in a year. During the final year of the previous administration, the U.S. safely and successfully resettled an average of 15,000 refugees every two months.”

The same reaction came from faith-based groups.

  • Scott Arbeiter, president of World Relief, a global Christian aid agency, said Trump has reneged on his promise to protect persecuted Christians in the world. “Instead, we’ve seen the resettlement of refugees from countries known for persecution drop about 90% in some cases over the last four years. This is unconscionable.”
  • Rev. John L. McCullough, head of the Church World Service, which helps resettle refugees in the United States, “described the shrinking of refugee admissions as immoral and urged Congress to . . . recommend changes or seek to influence the decision through budgeting, but is largely powerless to alter the determination. . . .Our values as a nation and as people of faith demand that we take action when people’s lives are in danger.”
  • “The Council on American-Islamic Relations, the nation’s largest Muslim civil rights organization, denounced the chipping away of the refugee program as part of “the ongoing Trump administration effort to maintain systemic anti-Black racism and white supremacy.”
  • Isaiah, a Minnesota faith coalition stated, “We know that we are better off together and that all of us, no matter where we come from or how we pray, want our communities to thrive and our voices to be heard. Overcoming tremendous challenges, Somali Minnesotans bravely moved to Minnesota with their families and have helped make this state vibrant.”

Finally this Trump decision is impeached by recent praises of refugees for their contributions to the economy and culture of 29 states by their governors (both Democrat and Republican).

For example, Minnesota’s Governor Tim Walz’s letter to Secretary Pompeo stated, ““Minnesota has a strong moral tradition of welcoming those who seek refuge. Our state has always stepped forward to help those who are fleeing desperate situations and need a safe place to call home. Refugees strengthen our communities. Bringing new cultures and fresh perspectives, they contribute to the social fabric of our state. Opening businesses and supporting existing ones, they are critical to the success of our economy. Refugees are doctors and bus drivers. They are entrepreneurs and police officers. They are students and teachers. They are our neighbors.”

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[1] State Dep’t, Transmission of the President’s Report to Congress on the Proposed Refugee Admissions for Fiscal Year 2021 (Sept. 30, 2020). 

[2] Convention Relating to the Status of Refugees, Art. 1 (A)(2),189 U.N.T.S. 150, entered into force April 22, 1954; Protocol Relating to the Status of Refugees, Art. I(2), 606 U.N.T.S. 267, entered into force Oct. 4,, 1967; Refugee Act of 1980, 8 U.S.C. sec. 1101(a)(42), Refugee and Asylum Law: The Modern Era, dwkcommentaries.com (July 9, 2010).

[3] U.S. Sets 18,000 Quota for New Refugee Admissions to U.S., dwkcommentareis.com (Nov. 4, 2019); Kanno-Youngs & Shear, Trump Virtually Cuts Off Refugees as He Unleashes a Tirade on Immigrants, N.Y. Times (Oct. 1, 2020); Rampell, Trump’s refugee ceiling is bad for everyone except bigots, Wash. Post (Oct. 1, 2020);  Watson & Lee, Faith Groups decry Trump’s plans for record low refugee cap, Wash. Post (Oct. 1, 2020); Miroff, Trump cuts off refugee cap to lowest level ever, depicts them on campaign trail as a threat and burden, Wash. Post (Oct. 1, 2020);Smith, Trump administration again seeks to slash refugee numbers, StarTribune (Oct. 1, 2020); Rights groups appalled as Trump cuts US refugee admissions to record low, Guardian (Oct. 1, 2020); U.S. State Governments Celebrate Refugees’ Accomplishments, dwkcommentaries.com (Feb. 2, 2020). 

Developments in George Floyd Criminal Cases

As previously discussed, the September 11 hearing in the four George Floyd criminal cases had many arguments and disclosures by the parties and judge’s decisions. [1]  Here is a summary of filings in the cases since that hearing.

State’s Response to Chauvin Dismissal Motion [2]

On September 18 the State responded to Derek Chauvin’s motion to dismiss the criminal complaint for alleged lack of probable cause. The State’s 42-page brief had a detailed statement of facts regarding the May 25th police encounter with Mr. Floyd and discussion of the relevant law. Here is its summary of the State’s position:

  • “There is probable cause for each charged offense in the complaint. On May 25, 2020, Chauvin, Kueng, and Lane pinned Floyd to the ground face-down after he was suspected of using a counterfeit $20 bill to purchase a pack of cigarettes. Chauvin pressed his knee into Floyd’s neck and held Floyd’s handcuffed left hand behind his back. Kueng knelt on Floyd’s back and likewise pinned Floyd’s handcuffed arms behind his back. Lane restrained Floyd’s legs with his hands and knees. And Thao—who saw what the other officers were doing and heard Floyd’s cries for help—encouraged the others to continue pinning Floyd down, pushed back a group of concerned bystanders, and prevented them from intervening.”
  • “In the first five minutes Floyd was on the ground, he told the officers at least twenty times that he could not breathe. He told them nearly ten times that he was dying. And then he fell silent. He stopped moving. He stopped breathing. And the officers could not find a pulse. As Floyd lost consciousness, a crowd of bystanders pleaded with the officers. They told the officers they were killing Floyd. They screamed that Floyd had stopped moving. They alerted the officers that Floyd had stopped breathing. And they begged the officers to take Floyd’s pulse. Nonetheless, the officers continued to pin him to the ground—with Chauvin kneeling on Floyd’s neck, Kueng on Floyd’s back, Lane on Floyd’s legs, and Thao standing watch to prevent the bystanders on the sidewalk from approaching the other officers and Floyd.”
  • “All told, the officers held Floyd in that position for approximately nine minutes—about five times longer than the national anthem, and four times longer than President Lincoln’s Gettysburg Address. During that time, Chauvin continued to kneel on Floyd’s neck for about four minutes after Lane told the other officers that Floyd was “passing out,” and for two and a half minutes after Kueng said Floyd did not have a pulse. Indeed, he continued to press his knee into Floyd’s neck for a full minute after emergency medical personnel arrived on the scene, and even while emergency personnel tried to check Floyd’s pulse.”

“Probable cause is manifest. The facts here “would lead a person of ordinary care and prudence to hold an honest and strong suspicion” that Chauvin committed second-degree murder, third-degree murder, and second-degree manslaughter. State v. Ortiz, 626 N.W.2d 445, 449 (Minn. App. 2001). The evidence is more than sufficient to establish probable cause for each offense. This Court should therefore deny Chauvin’s motion to dismiss.”

State’s Motion for Reconsideration of  Disqualification of Hennepin County Attorneys [3]

On September 14, the State asserted that “there is no rule which requires the inclusion of a non-attorney witness when [an attorney is] speaking to an experienced and routine government witness, and ABA guidance specifically contemplates a prosecutor meeting with such a witness one-on-one, and undoubtedly four-on-one, without triggering ethical or practical concerns. . . . [T]he meeting [of] these four[HCAO] prosecutors was not any sort of “sloppy” act or unethical shortcutting. Rather, it was a reasoned decision made by conscientious public servants.”

Moreover, “the State does not plan for any of these attorneys to be a trial advocate in this case, and defense counsel has not actually identified a credible scenario under which any of them would be disqualified from serving as such, e.g. by becoming a “necessary witness” at trial, which is the defense’s burden. With that in mind, it is unwarranted to further restrict the State still more: by prohibiting the State from even consulting with these experienced prosecutors (and thus preventing Mr. Freeman and Mr. LeFevour from supervising these matters). Such a broad removal of Mr. Freeman, Mr. LeFevour, Ms. Sweasy, and Mr. Lofton unduly prejudices the State.” In addition, two of the four attorneys have “recused themselves from the case and have had no further involvement in the case.”

In addition to its citation of relevant rules and cases, the State submitted an affidavit of William J. Wernz, who is described by the Minnesota State Bar Association as the author of Minnesota Legal Ethics: A Treatise and as “one of the nation’s foremost authorities on legal ethics.”  After reviewing the relevant materials, Mr. Wernz stated under oath, “in my opinion the interviews of the Hennepin County Medical Examiner by the HCAO did not furnish any basis for conclusion that they violated Rule 3.7, nor that any of them who acted as advocate at trial would violate Rule 3.7 by so doing.”

State’s Additional Discovery Disclosures [4]

On September 16, the State disclosed that it had provided defense counsel with the body worn camera video of Mr. Floyd’s May 6, 2019 incident with the Minneapolis police. On the same date, the State disclosed its having provided other materials.

Kueng’s Request for Preemptory Challenges [5]

On September 15, Defendant J. Alexander Kueng requested that if the four cases are consolidated for trial, each of the defendants should be granted 10 preemptory challenges (but at least five such challenges) of potential jurors.

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

[1] See the following posts and comments in dwk commentaries: Agenda for the 9/11/20 Hearing in the George Floyd Criminal Cases (Sept. 2, 2020); Preview of 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 10, 2020); Comment: Rule 404 Evidence Motions: More Details  (Sept. 10, 2020); More Details on 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 11, 2020);Results of 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 12, 2020).

[2] Chauvin Moves To Dismiss Criminal Complaint, dwkcommentaries (Aug. 28, 2020); State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause, State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept.18, 2020); State’s Exhibits for Opposition to Chauvin’s Dismissal Motion ,State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept.18, 2020).

[3] State’s Notice of Motion and Motion for Reconsideration of Order Prohibiting Participation of Michael O. Freeman and Others, State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept.14, 2020); Affidavit of William J. Wernz, State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept.14, 2020).

[4] Letter, Matthew Frank to Judge Cahill, State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept.16, 2020); Supplemental Prosecution Disclosures Pursuant to Rule 9.01, Subd. 1, State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept. 16, 2020).

[5] Defendant’s Position on Peremptory Challenges, State v. Kueng, File No. 27-CR-20-12953 (Sept. 15, 2020).

 

 

 

 

Guilty Judgment in 1989 Murder of Jesuit Priests in El Salvador   

On September 11, 2020, Spain’s highest criminal court, the Audiencia Nacional, found former Salvadoran Colonel, Inocente Orlando Montano (now 77 years old), guilty of the “terrorist murders” of  five Jesuit priests who were Spaniards, in San Salvador, the Capital of El Salvador, 31 years ago. The court found that Montano took part in the decision to “execute Ignacio Ellacuría as well as anyone in the area – regardless of who they were – so as not to leave behind any witnesses.”

The court then sentenced Montano to 26 years, eight months and one day for each of the five murders for a total of 133 years. However, he will not spend more than 30 years in prison, the judges said. This was after a trial of the only Salvadoran military officer who was extradited to Spain to stand trial under the international legal principle of universal jurisdiction authorizing jurisdiction in a state other than the site of the crime for human rights crimes.[1]

The Spanish NGO that was involved in the case, Guernica Centre for International Justice, published a background of the case, daily reports about the trial and the court’s decision. [2]

Also killed  in the same event were a Salvadoran Jesuit and two Salvadoran women, but those killings were not before the Spanish court.

The path to this legal judgment has been long and complicated.

The Murder of the Jesuit Priests

The murder of the Jesuit priests, one of the most horrendous crimes during the country’s civil war, occurred in the early hours of November 16, 1989, when a group of Salvadoran soldiers entered the campus of the Central American University (UCA) in San Salvador. They made their way to the residences of the Jesuit priests, who were UCA professors and advocates for the poor people of the country, and shot and killed the five Spanish priests–Father Ignacio Ellacuria (UCA’s Rector), Ignacio Martin-Barò (UCA’s Vice Rector), Segundo Montes (Director of UCA’s Human Rights Center), Armando Lòpez and Juan Ramôn Moreno.  The murdered Salvadoran Jesuit was Joaquin Lôpez y Lôpez, and the two murdered Salvadoran women were the priests’ cook and her daughter.[3]

Salvadoran Legal Proceedings Over This Crime

Immediately afterwards high officials of the Salvadoran military engaged in attempting to cover up its involvement in this horrendous crime, but international outrage and pressure caused the country to create a Salvadoran commission that investigated and reported that four officers and five soldiers were responsible for this crime and they along with another officer were brought to trial in that country for this crime in September 1991. A jury decided that the five officers were guilty of various crimes and sentenced them to prison, but acquitted the five soldiers. [4]

In 1992 the Salvadoran legislature enacted a General Amnesty Law that led that year to the release from prison of those convicted of the Jesuit murders.[5] In 2016, however, the Salvadoran Supreme Court held that the General Amnesty Law was unconstitutional, and at least one of those who had been convicted, sentenced and then released under that Law (Colonel Guillermo Alfredo Benavides Moreno) was ordered to return to prison after the invalidation of that Law.[6]

The Truth Commission for El Salvador[7]

On January 16, 1992, the Salvadoran government and the FMLN rebels signed the peace agreement to end the civil war. One of its provisions was the creation of the Truth Commission for El Salvador, whose report on March 15, 1993 had detailed findings about the murder of the Jesuits, including the following:

  • “There is substantial evidence that on the night of 15 November 1989, then Colonel René Emilio Ponce, in the presence of and in collusion with General Juan Rafael Bustillo, then Colonel Juan Orlando Zepeda, Colonel Inocente Orlando Montano and Colonel Francisco Elena Fuentes, gave Colonel Guillermo Alfredo Benavides the order to kill Father Ignacio Ellacuría and to leave no witnesses. For that purpose, Colonel Benavides was given the use of a unit from the Atlacatl Battalion, which two days previously had been sent to search the priest’s residence.”
  • “There is full evidence that:

(a) That same night of 15 November, Colonel Guillermo Alfredo Benavides informed the officers at the Military College of the order he had been given for the murder. When he asked whether anyone had any objection, they all remained silent.

(b) The operation was organized by then Major Carlos Camilo Hernández Barahona and carried out by a group of soldiers from the Atlacatl Battalion under the command of Lieutenant José Ricardo Espinoza Guerra and Second Lieutenant Gonzalo Guevara Cerritos, accompanied by Lieutenant Yusshy René Mendoza Vallecillos.”

Prior Proceedings in Spain’s Case[8]

In November 2008 a U.S. NGO (Center for Justice & Accountability) and a Spanish NGO filed a criminal case over the killing of the Jesuits  against 14 Salvadoran military officers and the country’s former President Cristiani. In January 2009 the Spanish court accepted the case against the military officers and soldiers, but declined to do so with respect to Cristiani although reserving the right to do so later.

On May 30, 2011, the Spanish court issued an indictment and arrest warrants for 20 of the top leaders of El Salvador’s civil war, accusing them of crimes against humanity and state terrorism in meticulously planning and carrying out the killings of the Jesuit priests in November 1989. One was Inocente Orlando Montano, who in 1989 was the vice minister of public safety.

Subsequently in complicated proceedings El Salvador denied extradition of all these requests for those living in the country. Only Montano, who had been living in the U.S. and who had been tried and convicted for lying in U.S. immigration papers, was extradited to Spain by the U.S.

Conclusion

After this decision by the Spanish court, UCA requested the Criminal Chamber of El Salvador’s Supreme Court to resolve a long-pending appeal by six other former military officers accused of involvement in the Jesuits murders so that their guilt can be adjudicated. UCA’s Rector, Andreu Oliva, said, “”We are confident that the evidence presented at the Spanish hearing will serve to hold a trial here in El Salvador, since it is evident that, given the indications in the sentence, there are other parties involved who are in El Salvador and that there is no reason why they are not judged in our country.” This requires the “urgent” opening of the archives of the country’s Armed Forces. [9]

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

[1] Assoc. Press, Spain imprisons ex-colonel for Jesuits slain in El Salvador, Wash. Post (Sept. 11, 2020); Jones, Ex-Salvadoran colonel jailed for 1989 murder of Spanish Jesuits, Guardian (Sept. 11, 2020); Jones, Spanish trial brings hope of justice for victims of Salvadoran death squads, Guardian (Sept. 7, 2020); Marroquin, 133 years in prison for ex-colonel Montano for the Jesuits case, elsalvador.com (Sept. 12, 2020); Spanish court rules in Jesuit massacre case.elsalvadorperspectives (Sept. 11, 2020);

[2] Guernica Centre, Trial Date Set for the Jesuits Massacre Case (Feb. 18, 2020); (background of case); Guernica Centre, The Jesuit Massacre Trial 2020: Daily Trial Briefings: #01 (06/08/20), # 02 (06/10/20), # 03 (06/11/20), # 04 (07/08/20), # 05 (07/09/20), # 06 07/10/20), # 07 (07/13/20), # 08 (07/14/20), # 09 (07/15/20); Guernica Centre, The Jesuit Massacre Trial, guernica37.com (Sept. 11, 2020). This NGO’s name memorializes the April 28, 1937 bombing of the Spanish town of Guernica by German Nazi warplanes at the request of Spanish General Francisco Franco during the Spanish Civil War. The number of casualties originally was estimated to be over 1,700, but now is believed to have been under 300. “Guernica” is also the name of a famous Picasso painting about the bombing on display at the Spanish Museo Reina Sofia in Madrid. (Bombing of Guernica, Wikipedia; Guernica (Picasso), Wikipedia.)

[3] See International Criminal Justice: The Salvadoran Murders of the Jesuit Priests, dwkcommentaries.com (June 2, 2011).

[4] International Criminal Justice: Salvadoran Military’s Attempted Cover-Up of Its Committing the Murders of the Jesuit Priests, dwkcommentaries.com (June 7, 2011); International Criminal Justice: Salvadoran Criminal Case Regarding the Murders of the Jesuit Priests, dwkcommentaries.com (June 8, 2011).

[5] International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case, dwkcommentaries.com (June 11, 2011).

[6] Reinstatement of Sentence of Former Salvadoran Military Officer for Participating in Murder of Jesuit Priests, dwkcommentaries.com (May 13, 2017).

[7]  United Nations, El Salvador Agreements: The Path to Peace  From Madness to Hope: the 12-year war in El Salvador (July 1992); Report of the Commission on the Truth for El Salvador (Mar. 15, 1993).

[8]  International Criminal Justice: The Spanish Court’s Criminal Case Regarding the Salvadoran Murders of the Jesuit Priests, dwkcommentaries.com (June 15, 2011); International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of  Jesuit Priests, dwkcommentaries.com (May 31, 201i); Former Salvadoran Military Officer Extradited from U.S. to Spain for Trial in Jesuits Murder Case, dwkcommentaries.com (Dec. 1, 2017). See generally posts listed in “The Jesuit Priests” section of List of Posts to dwkcommantaries—Topical: EL SALVADOR.

[9] Marroquin, The UCA asks the Criminal Chamber to resolve the appeal of the Jesuits case, elsalvador.com (Sept. 11, 2011); Calderon, Condemnation of Montano gives hope to prosecute masterminds of Jesuit massacre, says UCA, Laprensa Grafica (Sept. 11, 2020)

Results of 9/11/20 Hearing in George Floyd Criminal Cases

Information about what happened at the 9/11/20 hearing is provided by many media reports.[1] Here is a summary of those reports, again following the court’s Agenda for the hearing.

State’s Motions

Joint Trial. The State’s arguments were presented by Special Assistant Attorney General Neal Katyal, the famous attorney, law professor and commentator from Washington, D.C. He argued that the evidence against all four defendants is similar, that witnesses and family members are “likely to be traumatized by multiple trials” and that the interests of justice necessitate a single trial because separate trials would taint future juries. He also said, “The defendants watched the air go out of Mr. Floyd’s body together. And the defendants caused Mr. Floyd’s death together.”

Thao’s attorney responded to the last point by arguing that the jury pool already has been tainted by comments about the case by Attorney General Ellison and others.

A St. Paul attorney who is not involved in the case, Paul Applebaum, said, “it’s going to be tough for the defense attorneys to get the cases separated, partly because it would be difficult for Chauvin to blame the other officers for the charges of murder and manslaughter against him, but also because of the burden of holding four separate trials.”

Aggravating Factors for Upward Sentencing. Assistant Attorney General Matthew Frank argued that Floyd was particularly vulnerable because he was handcuffed and pinned to the ground. Judge Cahill expressed some skepticism of this point by asking whether what happens during an encounter qualifies for this purpose.

In  its Notice of Intent To Offer Other Evidence of 9/10/20, the State said it intended to offer evidence of Chauvin’s eight prior instances of use of excessive force, including use of  neck and upper body restraints.  In four of those, Chauvin allegedly used them “beyond the point when such force was needed under the circumstance,” an indication of his pattern, including his restraint of Floyd.[2]

Defendant’s Motions

 Motions for Change of Venue. Judge Cahill said it was too early to decide on a change of venue for the trial. He noted that Hennepin County District Court has been sending questionnaires to potential jurors to complete at home because of COVID risks and for the sake of expediency and that the court could start polling potential jurors ahead of the scheduled March 8 trial.

But two of the defense attorneys argued that the questionnaires should be completed in person at the courthouse because it carries more weight and meaning. Assistant Attorney General Matthew Frank agreed.

In response to defense arguments about adverse public opinion in Hennepin County, the Judge asked one of them, “There really isn’t a country, would you agree, or a state in this country where there hasn’t been a lot of publicity about George Floyd’s death?”

Jury Sequestration. The Judge said “it would be almost cruel to keep them in on weeks at a time. Instead, he suggested they be “semi-sequestered:”  jurors 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.

Motion to Disqualify HCAO [Hennepin County Attorney’s Office]. From the bench Judge Cahill said the HCAO’s work “sloppy” because they sent prosecutors to question the medical examiner, making them witnesses in the case. Therefore, he disqualified County Attorney Freeman and three assistants who questioned the Examiner because they are potential witnesses. However, others from the Office were not disqualified.

Afterwards Freeman and the Minnesota Attorney General requested reconsideration of this decision, which Judge Cahill granted. The request stated, “Any suggestion by Judge Cahill that the work of . . . [two Assistant County Attorneys] was sloppy was incorrect. The . . .[HCAO] fully stands by the work, dedication and commitment of two of the state’s best prosecutors. That third party mentioned by Judge Cahill does not need to be a non-attorney. [The two attorneys in question] asked to leave the case on June 3 and Frank [the other attorney in question] is the attorney of record, making . . .[the other two attorneys] valid third-parties and eligible to be called as witnesses by the defense. This HCAO decision is consistent with the relevant Minnesota Supreme Court case.

Rule 404 Evidence Motions. The Judge denied defense’s intent to offer evidence regarding Floyd’s arrest and conviction in Texas as it was irrelevant. He also denied the defense request for evidence regarding Floyd’s 05/06/19 medical incident at the Hennepin County Medical Center although he said it could come up at a later date.

Administrative Matters

Jury Selection. The Judge said that he anticipates jury selection will take two weeks with each prospective juror to take the witness stand for questioning by the attorneys.

COVID-19 Restrictions. The Judge said these restrictions would be in place with overflow rooms for family and press.

Trail Length. The Judge said he anticipates a four-week trial.

Conclusion

Although I was not in the courtroom to observe the Judge, the journalists’ reports suggest that the Judge is leaning towards a consolidated trial of all four defendants in Hennepin County under his supervision.

During the 3.5 hour hearing a highly organized, peaceful group of several hundred protesters gathered in front of the heavily fortified Family Justice Center. At first they laid silently on the ground for eight minutes and 46 seconds, which was the initially reported duration of the police pinning of Floyd on the pavement on May 25th (that figure was incorrect; the corrected number is seven minutes and 46 seconds).[3] When they rose, Marvin Gaye’s recorded voice sang, “Mother, mother, there’s too many of you crying” (the first verse from the late singer’s 1970 song “What’s going on”).

The protesters then repeatedly chanted, “Indict, Convict, Send These Killer Cops to Jail. The Whole Damn System Is Guilty As Hell!” Another call was “Say his name!” with the “George Floyd” response. Another: “Who killed him?” and “MPD.” The messages on their signs included the following: “No clemency for killer kkkops” and “Recall Freeman” and a reconfigured MPD badge to say “Murderous City of Lakes Police.”

When Lane and Kueng and their attorneys left the building, they were met by protestors yelling “Murderer!” The crowd then remained until Floyd’s family members left the building, and many of the protestors turned into a dance line, including the Electric Slide.

The protestors apparently are not aware that their protests are ammunition for the defendants’ arguments for transferring the cases to another county, where emotions are not so virulent. The protestors should adopt a different strategy.

After the hearing, Ben Crump, an attorney for the Floyd family, publicly expressed outrage over defense suggestions that Floyd’s use of drugs or earlier run-ins with the police were relevant to the killing of Floyd. “The only overdose was an overdose of excessive force and racism. It is a blatant attempt to kill George Floyd a second time.”

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

[1]  Xiong & Olson, Judge disqualifies some in Mike Freeman’s office for ‘sloppy work’ in George Floyd case, StarTribune (Sept. 11, 2020); LIVE UPDATES: Tentative 2-week jury selection, 4-week trial format for George Floyd case, kstp.com (Sept. 11, 2020); Judge In Floyd Case Disqualifies Members of Hennepin co. Attorney’s Office, minnesota.cbslocal.com (Sept. 11, 2020); Olson, Protestors confront former Minneapolis police officers with shouts of ‘murderer,’ StarTribune (Sept. 11, 2020); Protestors Shout At Former MPD Officers As They Exit Pretrial Hearing in George Floyd Case, minnesota.cbslocal.com (Sept. 11, 2020); Collins & Williams, George Floyd killing: Judge disqualifies Freeman from cops’ trial, MPRNews (Sept. 11, 2020); Read Hennepin County Attorney Mike Freeman’s response to being disqualified from George Floyd case, StarTribune (Sept. 11, 2020); Furber, Arango & Eligon, Police Veteran Charged in George Floyd Killing Had Used Neck Restraints Before, N.Y. Times (Sept. 11, 2020); Bailey, Prosecutors allege former Minneapolis officer used neck restraint in several other cases before George Floyd’s death, Wash. Post (Sept. 11, 2020); George Floyd’s Family Lawyer Pushes Back on Police Claims (video), N.Y.Times (Sept. 11, 2020); Officers charged in George Floyd killing seek to place blame on one another, Guardian (Sept. 11, 2020).

[2] State’s Notice of Intent To Offer Other Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin county District Court Sept. 10, 2020).

[3] Revised Length of Time for Minneapolis Police Restraint of George Floyd. dwkcommentaries.com (June 18, 2020).

 

More Details on 9/11/20 Hearing in George Floyd Criminal Cases

Yesterday’s post and comment provided a preview for today’s hearing.[1] Here are some more details for the hearing, again following the Agenda for the hearing.

State’s Motions

  1. Motion for Joint Trial.[2]

On September 10, the State submitted a 28-page reply in support of its motion for a joint trial, but time constraints do not allow for its examination and summary in this post.

One of the issues for this motion is whether or not the defendants have antagonistic defenses. Here are more details on that issue.

Chauvin’s attorney has said that his client did not know the full picture of what was happening when he and Thao arrived later on the scene to find Lane and Kueng struggling to get Floyd into the back seat of their squad car. The attorney also suggested that these other two had mishandled the scene by not doing enough to try to calm Floyd, by failing to administer naloxone and by  delaying the request for an ambulance and thereby causing the death.

Chauvin and Thao also may argue that as late arrivals on the scene they were deferring to Lane and Kueng irrespective of their lack of seniority and rank.

Thao will emphasize his “human traffic cone” role while the other three were physically restraining Floyd.

Lawyers for Lane and Kueng, both rookies, have emphasized that they were following the orders of their superior, Chauvin, and that Lane twice tried to intervene to get Floyd turned over, but Chauvin refused. Kueng also may testify about faulty training by Chauvin on how to handle a detention while Kueng and Thao may point to the history of 18 complaints about Chauvin’s conduct as an officer.

Lane’s attorney said, “It is plausible that all officers have a different version of what happened and officers place blame on one another.”

All four, however, apparently are arguing that Floyd’s death was accelerated by drugs in his system

Defendants’ Motions

  1. Discovery Motions.[3]

Late on September 9, the State submitted a response to such motions from all four defendants. Here are its main points:

  • The State already had disclosed the Hennepin County Medical Examiner’s complete file and that although the State had no obligation to disclose the autopsy reports by the Armed Forces Medical Examiner and by experts retained by the Floyd family (Drs. Baden and Wilson), the State had asked these persons for these documents and if they are so provided, the State would provide them to the defendants.
  • With respect to Floyd’s 5/5/19 incident with the MPD, the State had requested any body worn camera footage from the MPD and, if it exists, it would be provided; the Hennepin County Attorney’s Office has no record of a referral for prosecution; and any other prosecuting agencies are not within the State’s control.
  • The State stated there is no factual basis for the request for documents on Floyd’s acting as an informant and gang affiliations and the requests were denied.
  • If possible, the State will produce the MPD training PowerPoints in the original format.
  • The State denied the request for the State’s document indices as privileged attorney work product.
  • The State already has produced the MPD Internal Affairs Public Summaries for all four defendants, but opposes any other disclosure.

Conclusion

On a separate note, there are planned protests near the courthouse on the day of the hearing. As a result, windows on government buildings have been boarded up and law enforcement officials are setting up a perimeter to keep protesters at a distance.

In fact, the hearing will be held in the nearby Family Justice Center, where the Hennepin County Family Court is located, in downtown Minneapolis.

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

[1] Preview of 9/11/20 Hearing for George Floyd Criminal Cases, dwkcommentaries.com (Sept. 10, 2020); Comment: Rule 44 Evidence Motions: More Details, dwkcommentaries.com (Sept. 10, 2020). See also Xiong, Several key issues at stake Friday morning in Hennepin County court hearing in George Floyd case, StarTribune (Sept. 10, 2020).; Collins, Judge to hear arguments Friday in Floyd killing case, MPRNews (Sept. 11, 2020).

[2]  State’s Reply in Support of Motion for Joinder, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin county District Ct. Sept. 10, 2020); Bailey, Former Officers charged in George Floyd killing turn blame on each other, Wash. Post (Sept. 10, 2020),

[3] State’s Response to Defendants’ Motions To Compel Disclosure, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin county District Ct. Sept. 9, 2020)

Preview of  the 9/11/20 Hearing in George Floyd Criminal Cases

This preview will follow the Agenda for the 9/11/20 hearing in the four George Floyd criminal cases that has been set by the Hennepin County District Court Judge Peter Cahill.[1]

State’s Motions

  1. Motion for Joint Trial[2]

On August 12, the State asked the court to consolidate all four of the cases for one trial on the grounds that the charges and evidence in all four cases are similar; that there would be less negative impact on witnesses and family members; the defenses of the four ex-officers were not antagonistic; and the interests of justice would be advanced.

Unsurprisingly all of the four defendants are opposing this motion. Here is a summary of their arguments: Chauvin: other defendants likely to blame Chauvin, whose defenses are likely to blame the others and thus they are mutually antagonistic; trying Chauvin first is the sensible approach which would dictate the need for, and scope of, any other trials. Kueng: different evidence on whether and how the defendants worked in close concert; no particularly vulnerable witnesses; antagonistic defenses; interests of justice do not favor joinder. Lane: likely antagonistic defenses with each defendant having different version of what happened and who is to blame, forcing jury to choose between defendants’ testimonies. Thao: Minnesota has favored separate trials; unknown if “overwhelming majority” of evidence will be same in all the cases; Thao did not work in close concert with the others; impact on Floyd family is not a factor; nature of Floyd’s death does not favor joinder; antagonistic defenses are highly likely; COVID-19 favors separate trials with smaller gatherings at each.

  1. Motion to Submit Aggravating Factors to Jury (Blakely)[3]

Under Blakely v. Washington, 542 U.S. 2996 (2004), the U.S. Supreme Court held that the defendant’s Sixth Amendment right to a jury trial can be violated any time the court imposes a sentence greater than that called for in the guidelines, even when the sentence imposed is below the maximum punishment permitted by the legislature.

On August 28, the State gave notice of its intent to seek an upward sentencing departure for Chauvin on the grounds that Floyd was particularly vulnerable and was treated with particular cruelty by Chauvin, that Chauvin abused his position of authority, committed the crime as part of a group of three or more offenders who actively participated in the crime and in the presence of multiple children.

  1. Motion for Expert Witness Disclosure[4]

On August 28, the State moved for establishing deadlines of disclosure of expert witnesses with the following suggestions: Initial Expert Disclosures (12/08/20) and full Expert Disclosures (01/08/21).

Defendants’ Motions

  1. Motions for Change of Venue[5]

All four defendants have moved for change of venue with the following arguments: Chauvin (excessive pretrial publicity in Twin Cities); Lane (transfer to Washington or Dakota County because fair trial impossible in Hennepin County); Thao (fair trial impossible In Hennepin County; change to St. Louis, Clay or Crow Wing County); Kueng (prejudicial publicly in Hennepin County; change to  another county “outside the seven-county metro area, such as Stearns County or another county with appropriate facilities and demographics”).

  1. Jury Sequestration and Anonymity Motion[6]

On August 28, Thao moved for jury sequestration and juror anonymity due to “the notoriety of the case.”

  1. Motion to Disqualify HCAO [Hennepin County Attorney’s Office][7]

The only apparent motion to disqualify the HCAO was filed on August 6 by the attorney for Kueng on the ground that the County Attorney had made prejudicial comments about the defendants, and the very next day (August 7) Judge Cahill denied the motion.

Thus, this must be an erroneous agenda item.

  1. Rule 404 Evidence Motions[8]

On August 27, Kueng gave notice that he may offer at trial evidence regarding  (1) the circumstances of (a) Floyd’s 05/06/19 arrest by MPD; (b) Floyd’s 05/06/19 medical intervention at Hennepin County Medical Center; and (c) Floyd’s 08/09/07 arrest and subsequent conviction in Texas for Aggravated Robbery with a Deadly Weapon.

  1. Discovery Motions[9] On August 24, Thao filed a motion to compel discovery of the following regarding the investigation and death of Floyd; (1) complete Hennepin County Medical Examiner’s Office file; (2) any and all reports and autopsies performed by Dr. Michael Baden; (3) any and all reports and autopsies performed by Dr. Allecia Wilson; and (4) entire Office of the Armed Forces Medical examiner file.

On August 28, Chauvin filed a motion for the State’s disclosure of (1) body worn camera/audio from MPD CN-201 9-127538 from Floyd’s arrest; (2) files pertaining to Floyd’s cooperation as an informant for the MPD, FBI or any other state or federal law enforcement agency; (3) files documenting Floyd’s activity as a gang member or affiliate within the past five years; (4) information regarding Floyd’s 05/06/19 drug possession/sale investigation; (5) training materials with active imbedded links to video portions; and (6) index to State’s document disclosures.

Administrative Matters

  1. Jury Selection
  • Method
  • Preemptory Challenges
  1. In-Court Presence/COVID-19 Restrictions
  2. Overflow rooms/Audio-Visual Coverage
  3. Overnight/Special Transcript Requests
  4. Trial Length/Daily Schedule

Substantive Matters

The Judge already has announced that the only substantive matters—the four defendants’ motions to dismiss for alleged lack of probable cause for the criminal charges—will be decided on the briefs and factual record without argument at the hearing.[10] The only new details on these motions is the State’s recent opposition to Defendant Kueng’s dismissal motion and its future opposition to the recent Chauvin motion. [11]

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

[1] Agenda for Court’s 9/11/20 Hearing in George Floyd Criminal Cases, dwkcommentaries.com (Sept, 2, 2000); Comment: More Informed Reaction to Agenda, dwkcommentaries.com (Sept. 7, 2020).

[2] Prosecution Requests One Trial for the Four Former Policemen Charged with Floyd Killing, dwkcommentaries.com (Aug. 13, 2020); Chauvin’s Memorandum of Law Opposing the State’s Joinder Motion, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Sept. 8, 2020); Lane’s Defense Objection to State’s Motion for Joinder, State v. Lane, Court File No. 27-CR-20-12951 (Hennepin County Dist. Ct. Sept. 8, 2020); Kueng’s Objection to the State’s Motion for Joinder, State v. Kueng Court File No. 27-CR-20-12953 (Hennepin County Dist. Ct. Sept. 8, 2020); Thao’s Memorandum in Opposition to State’s Motion for Joinder, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County Dist. Ct. Sept. 8, 2020);  Xiong, Attorneys for former officers in George Floyd murder case want separate trials, StarTribune (Sept. 8, 2020).

[3]  State’s Notice of Intent To Seek an Upward Sentencing Departure, State v. Chauvin, et al.,Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Aug. 28, 2020).

[4] State’s Notice of Motion and Motion for Expert Disclosure Deadlines, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Aug. 28, 2020).

[5] Chauvin’s Notice of Motions and Motions To Change Venue and Reserve Ruling, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Aug. 28, 2020); Lane’s Notice of Motion and Motion To Change Venue, State v. Lane, Court File No. 27-CR-20-12951 (Hennepin County Dist. Ct. Sept. 8, 2020);  Thao’s Notice of Motion and Motion for Change of Venue, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County Dist. Ct.Aug. 28, 2020); Defendant Kueng Moves for Dismissal and Change of Venue in George Floyd Case, dwkcommentaries.com (Aug. 28, 2020).

[6] Thao’s Notice of Motion and Motion To Sequester Jurors, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County Dist. Ct.Aug. 28, 2020).

[7]  Court Denies Ex-Officer Kueng Motion To Remove County Attorney from George Floyd Criminal Case, dwkcommentaries.com (Aug. 7, 2020).

[8] Kueng’s Notice of Additional Evidence, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County Dist. Ct. Aug. 27, 2020).

[9] Thao’s Motion to Compel Disclosure, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County Dist. Ct.Aug. 24, 2020); Chauvin’s Notice of Motion and Motion for Disclosure, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Aug. 28, 2020).

[10] See these posts to dwkcommentaries.com: Ex-Officer Lane Moves for Dismissal of Criminal Charges for George Floyd Killing (July 9, 2020);  Comment: Prosecutors Oppose Ex-Cop Thomas Lane’s Dismissal Motion (Aug. 12, 2020); Prosecution Opposes Lane’s Dismissal Motion (Aug. 21, 2020); Lane’s Reply to Prosecution’s Opposition to Dismissal of Complaint (Aug. 22, 2020); Ex-Officer Thao Moves for Dismissal of Criminal Charges for George Floyd Killing  (July 30, 2020); Defendant Thao’s Dismissal Motion (Aug. 25, 2020); Prosecution Opposes  Defendant Thao’s Dismissal Motion for George Floyd Killing (Aug. 27, 2020); Defendant Kueng Moves for Dismissal and Change of Venue in George Floyd Case (Aug. 28, 2020); Chauvin Motion To Dismiss Criminal Complaint (Sept. 9, 2020).

[11] State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County Dist. Ct. Sept. 8, 2020); Exhibits to State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County Dist. Ct. Sept. 8, 2020). See generally List of Posts to dwkcommentaries–Topical: George Floyd Killing.

 

Chauvin Moves To Dismiss Criminal Complaint 

On August 28, former Minneapolis police officer Derek Chauvin filed a motion to dismiss the criminal complaints against him.[1] Here is a summary of this motion.

Dismissal of Count I–Second Degree Unintentional Murder

 Count I of the Amended Complaint alleges Chauvin is guilty of Second Degree Unintentional Murder by reason of his allegedly committing a Third Degree Assault. But it does not even “allege that Mr. Chauvin possessed the intent to inflict bodily harm upon Mr. Floyd.” And “the State has offered no evidence to support the intent element of third-degree assault.” (Chauvin Memo at 9.)

Instead, the evidence shows that Floyd “was struggling in and around the squad [car] at a busy Minneapolis intersection. He was handcuffed and acting erratically. Continued struggle posed a risk of injury to Mr. Floyd and, potentially, to officers. The decision to use MRT allowed officers to restrain Mr. Floyd without injury until EMS arrived on scene. Mr. Chauvin, who arrived at the scene as officers were already struggling with Mr. Floyd, checked to ensure that EMS had been called.” (Id. at 9-10.)

“The Medical Examiner found no bruising on Mr. Floyd’s neck or on any neck muscles or any injury to neck structures. There was no bruising on Mr. Floyd’s back or evidence of blunt trauma to his back. If Mr. Chauvin had intended to inflict harm to Mr. Floyd’s back and neck with his knee, surely there would be evidence of bruising. But clearly, Mr. Chauvin was cautious about the amount of pressure he used to restrain Mr. Floyd—cautious enough to prevent bruising. Video evidence shows Mr. Chauvin was calm and professional throughout the application of MRT” or Maximal Restraint Technique that was a technique approved by the Minneapolis Police Department. (Id. at 10.)

Dismissal of Count II–Third-Degree, Depraved Mind Murder

“Count II of the Amended Complaint charges Mr. Chauvin with Third Degree Murder— Perpetrating Eminently Dangerous Act and Evincing Depraved Mind, in violation of Minn. Stat. § 609.195(a). Under Minnesota law, however, ‘[d]epraved mind murder cannot occur where the defendant’s actions were focused on a specific person.’ State v. Barnes, 713 N.W.2d 325, 331 (Minn. 2006) (citing State v. Wahlberg, 296 N.W.2d 408, 417 (Minn. 1980)).” (Id. at 11.)

“As the Minnesota Supreme Court has explained, ‘We have made clear that the statute covers only acts committed without special regard to the effect on any particular person or persons.’ State v. Zumberge, 888 N.W.2d 688, 698 (Minn. 2017). ‘[T]he act must be committed without a special design upon the particular person or persons with whose murder the accused is charged.’ Id. (appellant’s claims that he shot “toward” not “at” the decedent precludes a third degree murder instruction) (citation omitted). Third degree murder is reserved to cover cases where the act was ‘reckless or wanton,’ such as firing a gun into a bus or driving a vehicle into a crowd. Wahlberg, 296 N.W.2d at 417. That is simply not the case here.” (Id. at 11.)

Dismissal of Count III—Culpable Negligence Manslaughter

 This charge requires proof of the actor’s “objective gross negligence” and “subjective recklessness.” (Id. at 12.)

Under Minnesota cases, “objective gross negligence” is an act that was “a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.” Here, Chauvin as a police officer in an emergency situation under Minnesota case law had ‘significant independent judgment and discretion’ . . . ‘precisely because a more stringent standard could inhibit action.’ (Id. at 12-13.)

Chauvin’s attorney then argues,  “Such discretion often comes into play when an officer must gauge how much force to use in order to effect an arrest. The amount of force authorized is dependent on the subject being arrested, the circumstances of the arrest, and the ever-developing fact pattern of any arrest scenario.” (Id. at 13.)

Here, “Chauvin was acting within his duties to execute a legitimate legal process—assisting other officers with effecting their arrest of George Floyd,” who was actively resisting arrest when Chauvin arrived on the scene. Quoting Minnesota cases, in such cases, an ‘officer may use all necessary and lawful means to make the arrest’ and is authorized “to escalate their use of force, short of deadly force, as necessary.” Here, under MDP policy, the use of MRT was authorized because Floyd was ‘handcuffed, . . .combative and still pose a threat to themselves, officers or others, or could cause significant damage to property if not properly restrained.” (Id. at 14-19.)

Moreover, the evidence shows Chauvin performed the MRT in accordance with MPD training materials and manuals and did not actually and consciously disregard the risks associated with MRT. And the Hennepin County Medical Examiner found no bruising on Floyd’s neck or muscles or neck structures or on his back. (Id. at 14-20.)

Dismissal of All Counts—Chauvin Did Not Cause Floyd’s Death

According to the relevant Minnesota statutes and cases, conviction for homicide requires that ‘the act of the defendant [was] the proximate cause of death of [the victim] without the intervention of an efficient independent force in which the defendant did not participate or which he could not reasonably have foreseen” or that “the defendant’s conduct was a ‘substantial causal factor’ in bringing about the victim’s death.” (Id. at 21.)

Chauvin’s attorney then asserts, “Mr. Chauvin was not the proximate cause of Mr. Floyd’s death, because an ‘independent force’ . . . in which Mr. Chauvin ‘did not participate’ and which ‘he could not reasonably have foreseen’ intervened: Fentanyl.” (Id.)

“It is clear from the evidence that Mr. Floyd was under the influence of narcotics when he encountered the officers and that he most likely died from an opioid overdose. . . . His body contained a lethal dose of fentanyl—[1ng/ml—as well as methamphetamine, at the time of his death.” Indeed, Chauvin quotes the Hennepin County Medical Examiner, Dr. Andrew Baker, telling the prosecutors on June 1, ‘If he were found dead at home alone & no other apparent causes, this could be acceptable to call an OD [overdose].’ [2] But Chauvin’s attorney does not quote the next note: “Baker. I am not saying this killed him.” (Emphasis added.)

Moreover, Chauvin’s attorney does not quote Dr. Baker’s actual autopsy report (5/26/20) that was titled “Cardiopulmonary Arrest complicating Law Enforcement Subdual, Restraint, and Neck Compression” or the County Medical Examiner’s Press Release (05/26/20) with the same statement for “Cause of Death” plus ‘How injury occurred: Decedent experienced a cardiopulmonary arrest while being restrained by law enforcement officer(s)’ and ‘Manner of death: Homicide.’[3]

Also not quoted by Chauvin’s attorney were the June 10 report by the Defense Health Agency concurring with the ‘autopsy findings and the cause of death certificate’ by the Hennepin County Medical Examiner. Or the findings of Dr. Michael Baden and Dr. Allecia Wilson, who were retained by the attorneys for the Floyd family, that found that Floyd ’died of traumatic asphyxia due to the compression of his neck and back during restraint by police’ and ‘Manner of Death’ was ‘homicide.’ State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020).[4]

Chauvin’s attorney admits in this brief that Floyd “told officers that he had suffered from COVID-19.” Moreover, Chauvin arrived at the scene with fellow ex-officer Thao, who testified during an interview by the Bureau of Criminal Apprehension (BCA) and FBI, that when he and Chauvin were driving to join Lane and Keung at the scene they were told on the phone that someone who had appeared to be intoxicated had passed a fake bill at Cup Foods and after arrival Thao had heard Floyd say he had had COVID-19 while he was in the back seat of a squad car before he went to the pavement outside the car and Thao had been worried that Floyd was on drugs.

Chauvin’s attorney boldly states that even though Lane and Keung may have observed signs of Floyd’s overdose and medical trauma, “none of this information was shared with Mr. Chauvin. Therefore, “Chauvin was unaware of the potential dangers of using MRT on Mr. Floyd.” (Chauvin Memo at 25-26 (emphasis in original).) This appears to be an unfounded overstatement of the record.

Conclusion

Given the recent filing of this Chauvin motion, as of noon on September 9, the State had not yet responded to this motion, but clearly it will oppose same before the court considers and rules on the four dismissal motions on the briefs and record.

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

[1] Defendant’s Notice of Motions and Motions To Dismiss, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020);  Memorandum of Law in Support of Defendant’s Motion To Dismiss, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Defendant’s Exhibit List in Support of Motion To Dismiss for Lack of Probable Cause, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Hennepin County Medical Examiner’s autopsy report (5/26/20) (Ex. 20),  State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Hennepin County Attorney’s Office memos of interviews of Dr. Andrew Baker (Hennepin County Medical Examiner) on 5/26/20, 5/27/20 & 5/31/20, (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Notes from Hennepin County Attorney’s [6/1/20] interview with Dr. Andrew Baker{Hennepin County Medical Examiner], (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Hennepin County Attorney’s Office summary of communications with Chief Tim Longo, University of Virginia Police Department (5/26/20-6/3/20) (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Defense Health Agency autopsy summary report (6/10/20) (Ex. 19), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Summary of autopsies of Floyd by Drs. Baden and Wilson on behalf of Floyd Family (7/2/20) (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020). See also Raice & Ailworth, George Floyd’s Death Likely Caused by Drug Overdose, Argue Derek Chauvin’s Lawyers, W.S.J. (Aug. 28, 2020); Bailey, In new filing, Derek Chauvin previews his defense, but also seeks dismissal of charges, Wash. Post (Aug. 29, 2020); Olson, Chauvin lawyer: Restraint didn’t kill Floyd, ill health and drug abuse did, StarTribune (Aug. 29, 2020).

[2] Chauvin Memo at 22; Hennepin County Attorney’s Office, Notes from Notes from [6/1/20] interview with Dr. Andrew Baker{Hennepin County Medical Examiner], (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020).

[3] Affidavit of Matthew Frank Exs. 4 & 5 (Aug 10, 2020), State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court Aug. 10, 2020).

[4] Summary of Dr. Michael Baden and Dr. Allecia Wilson’s findings (7/2/20), (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020) (Exs. 6, 19)