Derek Chauvin Trial: Defense Motion for New Trial and Impeachment of Jury Verdict

On May 4, Defendant Derek Chauvin submitted to the trial court a motion for a new trial and impeachment of the jury verdict. These matters are summarized below.[1]

Motion for New Trial [2]

This motion is based on Minnesota Rules of Criminal Procedure 26.04, subd. 1, which provides that the trail court may grant a new trial on the issue of guilt on any of the following grounds:

“(1)The interests of justice; (2) Irregularity in the proceedings, or any order or abuse of discretion that deprived the defendant of a fair trial; (3) Prosecutorial or jury misconduct; (4) Accident or surprise that could not have been prevented by ordinary prudence; (5) Newly discovered material evidence, which with reasonable diligence could not have been found and produced at the trial; (6) Errors of law at trial, and objected to at the time unless no objection is required by these rules; or (7) A verdict or finding of guilty that is not justified by the evidence, or is contrary to law.”

In support of this motion Chauvin alleges that:

  • “(a) The court abused its discretion in denying Chauvin’s motion for a change of venue.
  • (b) The court abused its discretion in denying Chauvin’s motion for a new trial on the ground that there was adverse publicity during the trial with respect to the defense’s expert witnesses.
  • (c) The court abused its discretion in failing to sequester the jury for the duration of the trial.
  • (d) The State committed pervasive, prejudicial prosecutorial misconduct. . . . including but not limited to: disparaging the Defense; improper vouching; and failing to adequately prepare its witnesses.
  • (e) The court abused its discretion by failing to order Morries Hall to testify or, alternatively to admit into evidence Mr. Hall’s statement to law enforcement regarding his interactions with George Floyd and presence at the May 25, 2020 incident.
  • (f) The court abused its discretion by submitting instructions to the jury that failed to accurately reflect the law with respect to second-degree unintentional murder, third-degree murder, and authorized use of force.
  • (g) The court abused its discretion by permitting the State to present cumulative evidence with respect to use of force.
  • (h) The court abused its discretion by ordering the State to lead witnesses on direct examination.
  • (i) The court abused its discretion by failing to order that a record be made of the numerous sidebars that occurred during the trial.
  • (j) The cumulative effect of the court’s multiple errors deprived Chauvin of a fair trial in violation of his constitutional rights.”

Motion for Impeachment of Verdict [3]

This motion is based on the Minnesota Supreme Court’s decision in the Schwartz case and Minn. R. Crim. Pro. 26.03, subd. 20(6). and the allegations that “that the jury committed misconduct, felt threatened or intimidated, felt race-based pressure during the proceedings, and/or failed to adhere to instructions during deliberations.”

Issues Regarding Juror Brandon Mitchell [4]

Mr. Mitchell, a Black man, in his written responses to the court’s questionnaire to prospective jurors, stated he had a “very favorable” opinion of Black Lives Matter (BLM). When questioned about this response in voir dire by defense counsel Erik Nelson, Mitchell said, “Black lives just want to be treated as equals and not killed or treated in an aggressive manner simply because they’re Black” and that “Black Lives Matter” was “simply a statement of fact that he supported.”

On the questionnaire Mitchell also stated he had a neutral opinion about “Blue Lives Matter” about police officers. When questioned in voir dire by Nelson, Mitchell said he knew some police officers at his gym and that they were “great guys.”

Mitchell on the questionnaire also said  “no” to the question whether he or anyone close to him had “participated in protests about police use of force or police brutality.”

Another Mitchell statement on the questionnaire said he wanted to serve on the jury “because of all the protests and everything that has happened after the event [the Floyd killing], this is the most important case of my lifetime and I would love to be a part of it.”  Nelson, therefore,  asked, “How did the protests and things that have happened afterward have to do with  . . the facts and evidence in this case?” Mr. Mitchell responded: “Well there’s no correlation between the protest and the facts. The facts are the facts. There’s no correlation between these two things.”

Thereafter Nelson obviously did not seek to strike Mitchell as a juror.

Recently it became known via social media that Mitchell had attended a large rally on August 28, 2020, in Washington, D.C. to commemorate the 57th  anniversary of Martin Luther King’s famous “I Have a Dream” speech at the Lincoln Memorial. Some groups, including the NAACP, emphasized it was a way to recommit to King’s vision of racial equality while other groups tied ihe event to promote voter registration, police reform and justice for George Floyd.

The source of this information about Mitchell was a social media post containing a photo of him with two relatives in what appears to be a bar or restaurant the weekend of this event. He is wearing a T-shirt with an image of Dr. King, the logo “BLM” and “Get Your Knee Off Our Necks Commitment March.”

When questioned by journalists about this event, Mr. Mitchell said he attended because he had never been to Washington, D.C. and wanted to commemorate Dr. King. He also said he may have been given the t-shirt during the march, but does not specifically recall details.

Joseph Daly, a retired law professor at St. Paul’s Mitchell Hamline School of Law, thought Mr. Mitchell has been very forthright on a range of topics in his voire dire and that Nelson’s question about attending any anti-police rally was open to interpretation. Daly added, a prospective juror is “not going to confession. You just have to answer the questions you are asked.” Therefore, in Daly’s opinion, it was unlikely the court could find that Mitchell was lying on his response to that question.

Mary Moriarty, a former Chief Hennepin County Public Defender, thought Mitchell’s attendance at the event in Washington, D.C. did not make a difference. Given the evidence in the case, a court would be hard pressed to throw out the verdict. This view was shared by Melissa Murray, a law professor at New York University, who said although the attendance at the MLK event and the t-shirt were “not great, throwing out a jury verdict under these circumstances is probably a long shot.”

A similar opinion came from a New York criminal defense lawyer, Benjamin Brafman, who said, ”It’s been my experience that if you represent a really notorious individual in a trial that’s been watched by the entire world, you would have to have a really powerful confluence of legal issues for any appellate court to give it traction.”

Another Minnesota criminal defense attorney, Mike Padden, had a different view. He thought Mitchell in the voir dire should have disclosed his attendance at the MLK event and let the judge and the attorneys decide whether he should be on the jury.

Apparently the relevant legal precedent for this issue held that for a party to get a new trial, the party must show that the juror’s response on voir dire to a material question was dishonest and a correct response would have provided a valid basis for removal of the juror. (McDonough Poser Equip. v. Greenwood, 464U.S. 548 (1984).) https://www.washingtonpost.com/national/explainer-will-jurors-march-presence-impact-chauvin-case/2021/05/05/f2f70e84-addd-11eb-82c1-896aca955bb9_story.html

State’s Response to the Motions [5]

Chauvin’s four-page motion document asked for additional time to prepare and submit a thorough brief on these issues, and the State’s has not yet submit its detailed response to these motions. However, a spokesman for the Minnesota Attorney General’s Office stated, “The court has already rejected many of these arguments and the State will vigorously oppose them.”

Conclusion

The press reports about these defense motions, cited in footnote 1, contain the following opinions about the likely success of these motions .

Mike Brandt, a Minneapolis criminal defense attorney, said these requests are routine following a guilty verdict and often predict issues that will be raised on appeal, but that the convictions are unlikely to be overturned.

The previously mentioned Mary Moriarty said there wasn’t much new in the defense motion and that it lacked specificity. “You can see it’s very rushed and they actually asked for additional time to brief the issues.

It should also be noted that before or at the sentencing hearing in late June, the court has to rule on the prosecution’s pending motion for enhanced sentencing because of alleged aggravating circumstances. [6]

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[1] Defendant’s Notice of Motions and Post-Verdict Motions, State v. Chauvin, Court File No. 27-CR-20-12646 (Henn. Cty. Dist. Ct. May 4, 2021); Walsh, Derek Chauvin files for new trial, alleging prosecutorial and judicial misconduct, StarTribune (May 4, 2021); Xiong & Walsh, Chauvin files for new trial, alleging prosecutorial misconduct and judicial errors, StarTribune (May 5, 2021); Forliti (AP), Chauvin’s lawyer seeks new trial, hearing to impeach verdict, Wash. Post (May 4, 2021); Barrett & Winter, Derek Chauvin Seeks New Trial in George Floyd Case, W.S.J. (May 4, 2021); Eligon, Derek Chauvin’s Lawyer Asks for New Trial After Jury Verdict, N.Y. Times (May 4, 2021); Bailey, Derek Chauvin’s attorney files motion for a new trial, alleging misconduct by judge, prosecution and jurors, Wash. Post (May 4, 2021); Forliti (AP), EXPLAINER: Will juror’s march presence impact Chauvin case, Wash. Post (May 5, 2021). Details about the court’s previous rulings on these issues may be found in List of Posts to dwkcommentaries—Topical: George Floyd Killing.

[2] See n.1 supra; Minn. R. Crim. Pro. 26-04, subd. 1.

[3] See n. 1 supra; Minn. R. Crim. Pro. 26.03, subd. 20(6); Schwartz v. Minneapolis Suburban Bus Co., 104 N.W.2d 301 (Minn. Sup Ct. 1960).

[4] Forliti & Glass (AP), Chauvin juror: After intense trial, verdict was ‘easy part,’ StarTribune (April 28, 2021); Xiong, Chauvin juror hopes experience will lead to change, inspire others, StarTribune (April 28, 2021); AP, Juror talks of deliberations before finding Chauvin guilty, StarTribune (April 28, 2021); Beliware, First Chauvin juror to speak publicly recounts stress of coming to court to ‘watch a Black man die,’ Wash. Post (April 28, 2021);Xiong, Juror defends participation in March on Washington after social media post surfaces, StarTribune (May 4, 2021).

[5] See n. 1 supra.

[6] Xiong & Olson, Attorneys debate ‘aggravating factors ‘ in George Floyd murder, StarTribune (April 30, 2021); Forliti (AP), Prosecutors seek higher sentence for Chauvin in Floyd death, StarTribune (April 30, 2021); Bila, Chauvin’s ‘particular cruelty’ to George Floyd should mean harsher sentence, Minnesota attorney general argues, Wash. Post (May 1, 2021); AP, Chauvin sentencing in Floyd death pushed back to June 25, Wash. Post (April 27, 2021); State’s Memorandum of Law in Support of Blakely Aggregated Sentencing Factors, State v. Chauvin Henn. County Dist. Ct. No. 27-CR-20-12646 (April 30, 2021),; Defendant’s Memorandum of Law in Opposition to Upward Durational Sentencing Departure, State v. Chauvin Henn. County Dist. Ct. No. 27-CR-20-12646 (April 30, 2021).

 

Witnessing

Witnessing is an important human activity and responsibility.

Sometimes witnessing is a planned activity, like attending or watching and listening to a concert, play, movie, sporting event or a church worship service and then reporting (orally or in writing) what happened to others. Witnessing sometimes, however, is not planned beforehand when you observe something happening in your presence and subsequently tell others what you had observed.

Witnessing by Darnella Frazier [1]

An important example of the latter type of witnessing was provided by Darnella Frazier, a 17-year-old high school student, in Minneapolis at the corner of Chicago Avenue and 38th Street on May 25, 2020.

By happenstance she and her nine-year-old cousin walked from their home to the nearby Cup Foods store on that corner to buy some snacks. When they arrived at the store they noticed in the street a Minneapolis police car where a black man (George Floyd) was pinned in pain on the pavement by three Minneapolis policemen. Frazier immediately got out her cell phone and started a video recording of this event and then held her camera steady for over the next ten minutes until the Black man apparently died. She then  posted this video recording on her FACEBOOK page, which immediately was seen by many people around the world.

The next day in an interview by the StarTribune Frazier said she started the video recording ”as soon as I heard  . .  [the Black man] trying to fight for his life. It was like a natural instinct, honestly. The world needed to see what I was seeing. Stuff like this happens in silence too many times.” She hoped that the video can in some way bring about “peace and equality. We are tired of [police] killing us.” It was obvious to her that the officer had “seen how weak [Floyd] was, and he still proceeded. . . . My video proves what really happened.”

Frazier amplified her remarks in March 2021 FACEBOOK postings. “George Floyd was already cuffed on the ground, a knee to the neck when [the] restraint already is absolutely unnecessary. The man was begging for his life and Chauvin did not care. He deserves to go down.” Moreover, I can’t go to sleep in silence, my mind will eat me alive.” Frazier also criticized the falsity of the Minneapolis Police Department’s initial public report of this incident that stated the following:

  • “On Monday evening, shortly after 8:00 pm, officers from the Minneapolis Police Department responded to the 3700 block of Chicago Avenue South on a report of a forgery in progress.  Officers were advised that the suspect was sitting on top of a blue car and appeared to be under the influence.”
  • “Two officers arrived and located the suspect, a male believed to be in his 40s, in his car.  He was ordered to step from his car.  After he got out, he physically resisted officers.”
  • Officers were able to get the suspect into handcuffs and noted he appeared to be suffering medical distress.”
  • “Officers called for an ambulance.  He was transported to Hennepin County Medical Center by ambulance where he died a short time later.”
  • “At no time were weapons of any type used by anyone involved in this incident.”
  • “The Minnesota Bureau of Criminal Apprehension has been called in to investigate this incident at the request of the Minneapolis Police Department.”
  • “No officers were injured in the incident.”
  • “Body worn cameras were on and activated during this incident.”

At Chauvin’s recently concluded criminal trial, Frazier was the fourth witness called by the prosecution and provided moving and emotional testimony about what she observed and did that day. “When I look at George Floyd I look at my dad, I look at my brothers, I look at my cousins, my uncles, because they are all Black. I have a Black father, I have Black brothers, I have Black friends. I look at that and how it could have been one of them. It’s been nights I’ve stayed up apologizing and apologizing to George Floyd for not doing more and not physically interacting and not saving his life. It’s not what I should have done. It’s what he [Chauvin] should have done.” She also testified that Chauvin had a “cold look—heartless. It didn’t seem like he cared.”

In cross examination, defense counsel Erik Nelson was trying to fabricate a scene with bystanders becoming increasingly hostile to the point of creating a potential threat to the officers. Frazier agreed that bystanders were getting louder and angrier, but she added that she didn’t think anyone was ever threatening Chauvin.

After the jury on April 20th rendered its verdict that Chauvin was guilty on all three counts, Frazier said on FACEBOOK, “I just cried so hard. This last hour my heart was beating so fast, I was so anxious, anxiety [busting] through the roof. But to know GUILTY ON ALL 3 CHARGES !!! THANK YOU GOD THANK YOU … George Floyd we did it!! Justice has been served.”

Courage Award for Darnella Frazier [2]

Praise for Frazier’s actions at the scene of the Floyd killing actually started in October 2020, when PEN America, which works to defend and celebrate free expression in the United States and worldwide through the advancement of literature and human rights, announced that it was granting its annual Benenson Courage Award to Frazier. The announcement stated the following:

  • “In May 2020, Frazier documented the death of George Floyd at the hands of Minneapolis police officers, one of whom—Derek Chauvin—pressed his knee against Floyd’s neck, well after Floyd lost consciousness. Frazier’s video quickly spread across social media and led to a wave of community outrage, a major investigation, and Chauvin’s arrest, as well as the dismissal of [him and] the three other officers. Floyd’s killing, along with the deaths of Breonna Taylor, Ahmaud Arbery, Tony McDade, Dion Johnson, and others, drove a wave of activism across the country crying out for racial and economic justice.”

This award was presented at a virtual ceremony on December 8, 2020, by Spike Lee, the famous Oscar-winning film director. He said, “I’m so proud of my sister. She documented the murder of George Floyd, our brother, King Floyd. And that footage reverberated around this God’s earth, and people took to the streets all over this earth. Not just the United States of America, and it wasn’t just Black people either. Everybody took to the streets. My sister, I commend you, and you deserve  . . . the PEN/Benenson Courage Award. The [important] word is courage!”

Ms. Frazier accepted the Award with these comments: “ I would like to say thank you for honoring me with this PEN/Benenson Courage Award. I never would imagine out of my whole 17 years of living that this will be me. It’s just a lot to take in, but I couldn’t say thank you enough for everything that’s been coming towards me. Thanks to Mr. Lee for presenting this, and I appreciate that. Thank you for the PEN/Benenson Courage Award.”

Then followed thank you’s for her courage from attendees, including Meryl Streep, Anita Hill and U.S. Senator Cory Booker.

Other Praises for Frazier [3]

Many others have praised Frazier for her courage and quick-thinking on May 25th.

Her recording this video was praised at a June 11, 2020, press conference by Minneapolis Police chief Medaria Arradondo, “I am thankful, absolutely, that this [police encounter] was captured in the manner it was. [In similar situations, he encouraged others,]“Record, Record, absolutely. Record, call . . . a friend. Yell out. Call 911. We need a supervisor on the scene. Absolutely, we need to know that. So the community [should[ play a vital role and did two weeks ago.”

Chauvin’s conviction brought immediate praise for Frazier. Minnesota Governor Tim Walz said, Frazier’s taking “that video, I think many folks know, is maybe the only reason that Derek Chauvin will go to prison.” The NAACP in North Carolina, the state where Floyd was born. stated “The video shot by a high school student will go down in history. Not even many of Chauvin’s police colleagues, could argue against Ms. Frazier’s film.” Oprah Winfrey tweeted, “I’m grateful to the witnesses and their testimonies. Grateful to Darnella Frazier. Grateful to every juror for seeing and acknowledging what the world saw on that tape. Thank you God for real!”

Michelle Norris, a Washington Post columnist and a Minnesota native and graduate of the University of Minnesota, states Frazier “was the witness George Floyd needed on May 25, 2020. She was the witness we all needed—the public, the police, a country still grappling with racial codes that are stitched into the fabric of our governing institutions. She is the hero of this story.”

Norris continued, “Her bravery is a reminder that we too must not look away, and not just in the most wicked moments of bias but also in the small things that grease the runway toward larger prejudice. We must not look away when we see the softer kind of oppression that masks itself in offhand comments, and jokes, and the denigration and dismissal of ‘those people.’”

“And when I say ‘we,’ I am also talking about our public servants and especially our law enforcement officers who know too well that there are those in their ranks who ‘police’ from a dark and dangerous perspective. They know that some officers are guided by prejudice and proceed from warped beliefs. Those officers debase the entire profession.”

Conclusion

 Seven other bystanders to the killing of George Floyd testified in the Chauvin trial, including Judeah Reynolds, who is Frazier’s nine-year-old cousin. As Prosecutor Jerry Blackwell said in his closing argument, all of these bystander witnesses “were a bouquet  of humanity.”[4]

All of the bystanders testimony was  applauded by two prominent journalists. For Frank Bruni, the New York times columnist, these witnesses are “tormented by their memories of Floyd’s last minutes” and Floyd’s and their sense of “helplessness” of not being able to stop what was being done to Floyd. The Chicago Tribune’s columnist, Heidi Stevens, called these bystanders “stone catchers” or people who stand up and intervene when someone’s been wrongly accused and condemned. (This phrase is based upon Jesus rebuking men who were ready to stone to death a woman caught in adultery by asking them who is without sin to cast the first stone, which prompted all the men to drop their stones and walk away and upon Bryan Stevenson of the Equal Justice Initiative coining  the phrase “stone catchers.” [4]

This reference to the Bible should remind those of religious faith of our calling to be witnesses and give testimony. This is not easy. You have to give your account of what happened and your belief as to what it means. The person has to stand and say what he or she believes about God.

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[1] Walsh, For first time, Minneapolis teen opens up about her viral George Floyd arrest video, StarTribune (Mar. 12, 2021); Minneapolis Police Department, Man Dies After Medical Incident During Police Interaction (May 25, 2020); Paybarah, How a teenager’s video upended the police department’s initial tale, N.Y. Times (April 20, 2021); Bogel-Burroughs & Arango, Darnella Frazier, the teenager who filmed George Floyd’s arrest, testifies at the trial, N.Y. Times (Mar. 30, 2021);  Assoc. Press, [Video] ‘He Was Suffering’: Teenager Who Filmed Floyd’s Arrest Testifies at Trial, N.Y. Times (Mar. 30, 2021); Watch the replays” Day 2 testimony of witnesses Donald Williams and Darnella Frazier, StarTribune (Mar. 30, 2021); Xiong, Walsh & Olson, Teen who recorded George Floyd’s death reveals trauma, pain in testimony, StarTribune (Mar. 31, 2021); Jackson, Derek Chauvin trial shows people who film police violence later struggle with trauma, StarTribune (April 2, 2021); Derek Chauvin Trial: Week Four, dwkcommentaries.com (April 4, 2021); Knowles & Belia, Darnella Frazier, teen who filmed Floyd’s arrest, celebrates Chauvin’s guilty verdict: ‘Justice has been served,’ Wash. Post (April 21, 2021); Yan, A teen with ‘a cell phone and sheer guts’ is credited for Derek Chauvin’s murder conviction, cnn.comm (April 21, 2021); Fowler, You have the right to film police. Here’s how to do it effectively—and safely, Wash. Post (April 22, 2021).

[2] See note 1 supra. See also Walsh, Minneapolis teen ‘humbled’ to receive national Courage Award for filming George Floyd’s killing by police, StarTribune (Oct. 29, 2020); PEN America, Darnella Frazier, Dec. 8, 2020); Walsh, Minneapolis teen receives prestigious award for recording George Floyd video, StarTribune (Dec. 10, 2020).

[3] Norris, Opinion: Darnella Frazier is the hero of this story, Wash. Post (April 21, 2021). This blog has frequently commented about Bryan Stevenson’s amazing legal representation of death-row inmates and others. See also Sullivan, By bearing witness—and hitting ‘record’—17-year-old Darnella Frazier may have changed the world, Wash. Post (April 20, 2021.).

[4] The other bystander witnesses were Alyssa Funaru (17 years old), Kaylynn Gilbert (17 years old), Genevieve Hansen, Donald Williams II, Christopher Belfrey and Charles McMillian. (Derek Chauvin Trial: Week Four, dwkcommentaries.com (April 4, 2021). Bruni, Listening to Those Who Saw George Floyd Die, N.Y. Times (April 24, 2021); Stevens, ‘The world needed to see what I was seeing,’ StarTribune (April 23, 2021)..

Derek Chauvin Trial: Week One

March 8-12 marked the first week of the criminal trail of Derek Chauvin, the former Minneapolis police officer accused of second-degree murder and second-degree manslaughter for the death of George Floyd. This recap will open with the trial court’s reinstatement of the third-degree murder charge and then discuss the parties selection of 14 jurors, two of whom would be alternates. Then this recap will conclude with the March 12th announcement that the City of Minneapolis had reached an historic settlement agreement with the Floyd family over its civil claims for damages, which may have an impact on the Chauvin  and the other criminal cases against the other ex-police officers accused of aiding and abetting Chauvin’s alleged crimes.

Reinstatement of Third-Degree Murder Charge [1]

On March 11, Hennepin County District Court Judge Peter Cahill decided that the third-degree murder charge would be reinstated after the Minnesota Court of Appeals had rebuked his previous refusal to follow the majority opinion of a three-judge panel of that appellate court’s upholding the third-degree murder conviction of another former Minneapolis policeman, Mohammed Noor. 

Judge Cahill said he was “duty bound” to accept the appellate court’s ruling and its interpretation of the relevant statute as covering “single acts directed at a single person.” Moreover, “it would be an abuse of discretion not to grant the motion” to reinstate the charge.

Rachel Paulose, former U.S. Attorney for the District of Minnesota and now a professor at the University of St. Thomas Law School in Minneapolis, says the prosecution correctly asserted this charge since Chauvin threatened to harm witnesses who attempted to intervene to provide medical help to Floyd in addition to the harm to Floyd caused by the chokehold on the latter’s neck. Nevertheless, this additional charge carries the risk that the Minnesota Supreme Court in the pending case of the third-degree murder conviction of another former Minneapolis policeman, Mohammed Noor, might interpret this crime’s requirements more narrowly and enable Chauvin to escape criminal liability if this is the only charge on which he is held guilty at trial.

Minnesota Standards for Potential Jurors [2]

Minnesota Rule of Criminal Procedure 26.02, subd. 1 provides that a county’s jury list shall be “composed of persons randomly selected for a fair cross-section of qualified county residents.”

Rule 26.02, sub. 5(1) then provides 11 specified grounds for challenging a potential juror “for cause.” The most relevant one for the Chauvin trial appears to be “1. The juror’s state of mine—in reference to the case or to either party—satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the challenging party.” Subd. 5 (3) then goes on to say, “If a party objects to the challenge for cause, the court must determinate the challenge.” 

First Week of Chauvin Jury Selection [3]

In preparation for the task of selecting jurors in such a case of wide importance and publicity, the trial court earlier had submitted to potential jurors a 14-page questionnaire with questions about race, policing, martial arts and podcasts.” That court also had determined that Chauvin would have 15 preemptory challenges (8 of which were used this week); the prosecution, only 9 (five of which were used this week).

By the end of the week, seven people had been selected for this jury, five men and two women. Four are white and three are people of color: one black man in his 30’s, one biracial woman in her 20’s, one Hispanic man in his 20’s, one white woman in her 50’s, a white man in his 20’s and two white men in their 30’s. Six of them said they held “a somewhat favorable view of the Black Lives Matter  movement” although some said that view was more for its concept, not its tactics or politics. A jury consultant said “asking about Black Lives Matter and Blue Lives Matter gave lawyers a concrete way to frame conversations about otherwise uncomfortable topics.”

According to Wall Street Journal reporters, during this first week lawyers for both sides “often focused their questioning on Black Lives Matter, Blue Lives Matter and how jurors answered . . . [the court’s] questionnaire answered a questionable item about ‘defunding the Minneapolis Police Department.” This was seen by the reporters as the lawyers attempting to discern “whether potential jurors can put aside their personal opinions while evaluating evidence presented in court—though lawyers haven’t always been swayed by such pledges.”

The founder and chief organizer of Black Lives Matter Minnesota told the Wall Street Journal that he was encouraged that some of initial seven jurors held a positive view of this group while disappointed that the only black individual chosen so far was an immigrant who came to the U.S. more than a decade ago, rather than someone whose ancestors “went through slavery, Jim Crow and the Civil Rights era and who understands the history of our relationship with the police.”

Another issue arose this week over “spark of life” testimony allowed by a Minnesota statute to humanize the deceased victim. The Judge said that he would allow such witnesses to speak about how much they loved Mr. Floyd, but that if they started talking about his character,, it would “open the door’ for the defense to introduce evidence of his criminal history, which so far has been barred by the court.

As someone who only watched a few minutes of the questioning of the prospective jurors (the process of voire dire) and who saw only the questioning by Chauvin’s attorney, Eric Nelson, this blogger was impressed by his logical and conversational tone and maintenance of a straight face and thought that the prospective jurors probably would believe he was someone who deserved to be listened too during the trial. (After retiring from the practice of law, I was summoned for jury duty and was once a potential juror in a civil case who was very annoyed with the manner of one of the attorneys posing questions to the panel; I was eliminated as a juror as I expected because very few, if any, trial lawyers would want to have a lawyer as a juror.)

Settlement Between City of Minneapolis & Floyd Family [4]

On Friday, March 12, Minneapolis city officials and lawyers for the Floyd family publicly announced that they had agreed to settle the latter’s civil lawsuit for money damages with the city’s payment of $27 million.

Mayor Jacob Frey called it a milestone for the city’s future and a reflection of “a shared commitment to advancing racial justice and a sustained push for progress.” Indeed, Frey said the city would implement major policy changes in the pursuit of racial justice. The city’s coordinator, Mark Ruff, added that with cash reserves, officials were confident that this agreement would not lead to an increase of the city’s property taxes.

Ben Crump, the lead lawyer for the family said it would set an example for other communities: “After the eyes of the world rested on Minneapolis in its darkest hour, now the city can be a beacon of hope and light and change for cities across America and across the globe.” Crump also said that this settlement “sends a powerful message that Black lives do matter and police brutality against people of color must end.” the family had pledged to donate $500,000 of the settlement to “lift up” the neighborhood around the site of the killing of Mr. Floyd. And Floyd’s brother pledged to use some of the money to help other struggling Black communities.

Some commentators thought this agreement might make it even harder to seat an impartial jury. A former city chief public defender thought the timing of this agreement “could hardly be worse” for the criminal case against Chauvin and his lawyers might even ask for a mistrial if potential or already chosen jurors saw the agreement as the city’s acknowledgment that his actions were inappropriate.

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[1] Paulose, Opinion: The third-degree murder charges against Derek Chauvin carry worthwhile risks, Wash. Post (Mar. 12, 2021); Bogel-Burroughs, Derek Chauvin will now face a third-degree murder charge, N.Y. Times (Mar. 11, 2021); Court of Appeals Reverses District Court’s Refusal To Follow Precedent on third-Degree Murder Charge Against Derek Chauvin, dwkcommentaries.com (Mar. 5, 2021).  Derek Chauvin again charged with third-degree murder, StarTribune (Mar.  11, 2021); Bailey, Derek Chauvin trial judge reinstates third-degree murder charge in the death of George Floyd, Wash. Post (Mar. 11, 2021)

[2] Minn. Rules of Criminal Procedure 26.02, subdivisions 1, 2(3), 5(1), 5(3);Court’s Questionnaire for Prospective Jurors in George Floyd Criminal Cases, dwkcommentaries.com (Dec. 23, 2020).

[3] Dewan & Arango, What Are the Question for Potential Jurors in the Derek Chauvin Trial?, N.Y. Times (Mar. 7 & 11, 2021);  Levinson, Jury selection begins in Derek Chauvin’s trial in the death of George Floyd. Here’s what to expect, CNN.com (Mar. 11, 2021); Xiong & Walsh, StarTribune (Mar. 12, 2021); Bailey, Hints of strategy and new revelations in first week of Derek Chauvin murder trial, Wash. Post (Mar. 15, 2021).

[4] Bogel-Burroughs & Eligon, George Floyd’s Family Settles Suit Against Minneapolis for $27 Million, N.Y. Times (Mar. 12, 2021); Bailey & Olorunnipa, George Floyd’s family to receive recored $27 million in settlement approved by Minneapolis city council, Wash. Post (Mar. 12, 2021); Barrett & Winter,George Floyd Family Reaches $27 Million Settlement with Minneapolis, W.S.J. (Mar. 12, 2021). Here are summaries of the federal civil complaint by the Floyd family against the City of Minneapolis from dwkcommentaries.com: George Floyd’s Family Sues City of Minneapolis and Four Ex-Officers Involved in His Death (July 16, 2020); George Floyd Family’s Complaint Against City of Minneapolis Over His Death: Count II (July 18, 2020); George Floyd Family’s Complaint Against City of Minneapolis Over His Death: Count III (July 19, 2020).

Court of Appeals Reverses District Court’s Refusal To Follow Precedent on Third-Degree Murder Charge Against Derek Chauvin   

On March 5, only four days after it had heard oral argument, the Minnesota Court of Appeals ruled that Hennepin County District Court Judge Peter Cahill on February 11th erroneously had refused to honor binding precedent on third-degree murder and remanded the case for reconsideration of the prosecution’s motion to reinstate that charge against Derek Chauvin.[1]

The appellate court’s “Decision” stated, “ This court’s precedential decision in Noor [upholding a third-degree murder conviction of another former Minneapolis policeman] became binding authority on the date it was filed [February 1, 2021]. The district court therefore erred by concluding [on February 11th] that it was not bound by the principles of law set forth in Noor and by denying the state’s motion to reinstate the charge of third-degree murder on that basis. We reverse the order of the district court and remand for reconsideration of the state’s motion. On remand, the district court has discretion to consider any additional arguments Chauvin might raise in opposition to the state’s motion. But the district court’s decision must be consistent with this decision.”

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[1] Appellate Court Opinion, State v. Chauvin, Minnesota Court of Appeals, Case   # A21-0201 (Mar. 5, 2021)(this document is available for downloading on the District Court’s website, https://www.mncourts.gov/media/StateofMinnesotavDerekChauvin); Xiong, Court of Appeals: Trial judge improperly refused to reinstate third degree murder charge against Derek Chauvin, StarTribune (Mar. 5, 2021); Court Denies Third-Degree Murder Charges for George Floyd Killing, dwkcommentaries.com (Feb. 12, 2021).

 

More Evidence of Time of Police Restraint of George Floyd   

As noted in a prior post, the original May 29th criminal complaints against the four former Minneapolis policeman stated that Derek Chauvin held his knee to Floyd’s neck for 8 minutes, 46 seconds, a figure that became prominent in subsequent protests. However, on June 18th prosecutors admitted a mathematical error in calculating that time and said the actual time was 7 minutes and 46 seconds.[1]

Subsequent prosecution analysis of the time-stamped body camera footages of the other three defendants indicated that Chauvin had his knee on Floyd’s neck “for at least nine minutes flat, but possibly for as long as 9 minutes, 31 seconds.” Thus, some prosecution filings have said the length of the restraint was “approximately nine minutes” and at least once as “more than nine minutes and twenty seconds.” [2]

Most recently a prosecution spokesperson said the length of time of the restraint would be documented by evidence at trial.

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

[2] Forliti (Assoc. Press), Prosecutors: Officer was on Floyd’s neck for about nine minutes, StarTribune (Mar. 4, 2021).

 

Issues Regarding Motions in Limine in Chauvin Criminal Case

As discussed in a prior post, on February 8 Defendant Derek Chauvin submitted to the District Court his motions in limine seeking to limit at trial 37 items of certain evidence, anticipated questioning by opposing counsel or anticipated arguments of opposing counsel.[1] On March 4, the State filed its opposition to five of these requests in their entirety and partial objections to four others. Below is a brief account of those issues.[2]

In addition, on March 4, the State filed a motion to amend its previous motion in limine and to compel discovery. It also is summarized below.

Chauvin’s Total Objections to Five Requests

Request 18: Preclude witness police officers from testifying as to their opinion on how they would have handled the arrest of Mr. Floyd differently. According to the prosecution, “Police witnesses may testify how an officer should have handled Floyd’s arrest in light of Minneapolis Police Department (MPD) policies and training.”

Request 21: Preclude “speculative testimony from Genevieve Hanson that she believes if she had intervened she could have saved Mr. Floyd.” According to the prosecution, Ms. Hanson was an “off-duty firefighter . . . on the scene while Floyd was pinned to the ground, and who repeatedly asked the Defendants to check Floyd’s pulse and to begin chest compression . . . [and who] believes that if she [had] intervened , she could have saved Mr. Floyd . . . [and who may have personal knowledge of police officer training [to testify about its relevance to the conduct of the defendants].

Request 22: Preclude testimony of Donald Williams as to his training, experience and/or expertise in mixed martial arts, boxing or other training. According to the prosecution, Williams was present at the scene and exclaimed that Chauvin was placing Floyd in a ‘blood choke” and pleaded with Chauvin to stop that hold and that Williams’ personal experience as a fighter, wrestler and Mixed Martial Arts performer have given him personal experience as to how this kind of hold “can cut off circulation and affect a person’s breathing.”

Request 23: Preclude “any member of the Minneapolis Fire Department and paramedics from testifying as to cause and manner of Mr. Floyd’s death.” According to the prosecution, such witnesses “may testify as to their observations and first-hand assessments of Floyd’s condition, . . including their observations, made in the course of treating Floyd, as to the possible causes of Floyd’s condition.”

 Request 32: Preclude “the entirety of the proffered testimony of Dr. Sarah Vinson (psychiatric evaluation of George Floyd) on the grounds that the evaluation is speculative, based upon multiple levels of inadmissible hearsay, fails to meet scientific standards, offers no assistance to the jury, or so favors one party.” According to the prosecution, Dr. Vinson did not perform a ‘psychiatric evaluation of George Floyd.’  Instead, her expert testimony “describes the typical signs and symptoms of anxiety, fear responses to traumatic events, and panic attacks, including during police encounters,” and Floyd’s “sweating, shaking, an increased rate of breathing, thick saliva, and a sensation of shortness of breath . . . was consistent with an adrenaline-based fear response . . .[and] a panic attack and Trauma and Sensor Related Disorders.”

Chauvin’s Partial Objections to Four Requests

 Request 14: Direct State to “instruct State witnesses that they are not to assert a personal belief or opinion as the Defendant’s guilt or innocence, or whether or not the defendant is the type of person who could commit such an offense.” According to the prosecution, although there is a general rule against such testimony, it is allowed i for fact witnesses to express factual, rather than legal conclusions while expert witnesses are allowed to testify about the cause and manner of death. In addition, if the defendant offers evidence of a pertinent character trait of the defendant, the prosecution may attempt to rebut such testimony.

Request 19: Preclude “testimony about any police policy . . . that was not in effect at the  time of Mr. Floyd’s arrest or any subsequent changes in policy.” The prosecution agrees with this request, except for “policies or procedures on which Chauvin may have been trained , but that may not have been in effect at the time of Floyd’s arrest.”

Request 31: Preclude “the State from playing, publishing or otherwise relying upon the statements of co-defendants Thao and Lane on the grounds that  [Chauvin] would not be permitted to cross-examine these co-defendants.”  According to the prosecution, this Request is too broad if it applied to non-testimonial statements by co-defendants  “made during their encounter with Floyd that were captured by the body-worn cameras.” It is also too broad if it precluded the prosecution from using these statements if these co-defendants do testify at Chauvin’s trial.

Request 36: Preclude “any evidence of or reference to citizen complaints filed against Mr. Chauvin in his capacity as a police officer or investigated by the [MPD] whether sustained or deemed unfounded.” According to the prosecution, this request should not deny the prosecution from offering evidence . . . that this Court has already admitted into evidence [Chauvin’s “incidents” on 8/22/15 and 6/25/17].”

Prosecution’s Motion To Amend Its Motion in Limine[3]

Prosecution seeks to prohibit Dr. David Fowler, a defense expert witness, from “testifying regarding the opinion of any other non-testifying experts he consulted in preparation of the Forensic Panel Report  or testifying that other experts agree with Dr. Fowler’s opinion, analysis, or conclusion.”

Prosecution also seeks an order “compelling Defendant to disclose the specific opinions of non-testifying experts whose data, analysis, opinion, or conclusions contribution to the opinions, analysis, or conclusions contained in the Forensic Panel Report” and to conduct a hearing outside the presence of the jury, for Dr. Fowler [to] identify which opinions in that report are his work alone.”

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[1] Motions in Limine Before Derek Chauvin Criminal Trial, dwkcommentareis.com (Feb. 18,2021).

[2] Memorandum of Law in Opposition to Defendant’s Motions in Limine, State v. Chauvin, Hennepin County District Court, File no. 27-CR-20-12646 (Mar. 4, 2021). This document may be downloaded from the District Court’s website.

[3] State’s Amended Motion in Limine 2 and Motion To Compel Discovery and a Hearing, State v. Chauvin, Hennepin County District Court, File no. 27-CR-20-12646 (Mar. 4, 2021). This document may be downloaded from the District Court’s website.

 

Details about Upcoming Criminal Trial of Derek Chauvin

The StarTribune  has  provided the following information about the criminal trial of Derek  Chauvin that is scheduled to start on March 8th: when and where it will take place; who will be allowed in the courtroom;  a diagram of the courtroom; locations of the media; how to watch the livestream of the trial; COVID-19 measures; security; road closures; protests; and cameras in the courtroom.

DeLong, Chauvin explainer, StarTribune (Mar. 2, 2021). 

 

 

Appellate Hearing on Third-Degree Murder Charge Against Derek Chauvin 

Last month the Hennepin County District Court denied the prosecution’s motion to reinstate or amend pleadings to add third-degree murder charges against the four defendants in the George Floyd killing. The State immediately appealed that ruling and the Minnesota Court of Appeals immediately allowed that appeal.[1]

On March 1, a three-judge panel of that appellate court held a hearing on that appeal insofar as it involved Chauvin.[2] According to a StarTribune journalist who heard the argument, the appellate judges seemed skeptical of the arguments of Chauvin’s attorney who was urging affirmance of the dismissal of that charge against his client. For example, one of the judges asked both attorneys to focus on whether the trial judge was bound by the recent Court of Appeals’ decision upholding the third-degree murder conviction of another Minneapolis police officer, Mohamed Noor, or was allowed to not follow the appellate court’s ruling.

The attorney for the prosecution, Neal Katyal of a Washington, D.C. large law firm, said the ruling was binding as soon as it was published and unless it is overturned by the state Supreme Court. During the argument one of the three appellate judges said the court would issue an expedited decision in the case “as soon as possible” given the start of Chauvin’s trial on March 8.

Later the same day, the Minnesota Supreme Court, with unusual speed, agreed to grant review of  the appeal by Mr. Noor and to have oral arguments in the case in June. [3]

Meanwhile, the trial court on March 1 issued its Trial Management Order setting conditions for attendance of spectators, jurors and potential jurors, witnesses, attorneys and parties.[4]

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[1] See the following posts to dwkcommentaries.com: Court Denies Third-Degree Murder Charges for George Floyd Killing (Feb. 12, 2021); Comment: State Appeals Denial of Third-Degree Murder Charges in George Floyd Cases (Feb. 23, 2021); Appellate Court Throws Another Threat to Delayed Start of Chauvin Criminal Trial (Feb. 24, 2021).

[2] Xiong, Court of Appeals to hear third-degree murder argument in Derek Chauvin case today, StarTribune (Mar. 1, 2021); Xiong, In prosecution bid to add charges in George Floyd death,  Derek Chauvin’s attorney faces questions, skepticism before Court of Appeals, StarTribune (Mar. 1, 2021).

[3] Olson, With unusual speed, Minn. Supreme Court agrees to hear appeal in Noor case, StarTribune (Mar. 1, 2021).

[4]  Trial Management Order, State v. Chauvin, Hennepin County District Court, Dist. Ct. File 27-CR-20-12646 (Mar. 1, 2021).(this order is available on the court’s website,

Federal Investigation of the Killing of George Floyd

On or about February 23, it became known that a new federal grand jury had been empaneled in Minneapolis to investigate whether Derek Chauvin had violated George Floyd’s civil rights, i.e., his right against unreasonable seizure or right to due process.[1]

Apparently this federal investigation does not involve the other ex-officers now facing state charges of aiding and abetting Chauvin’s conduct.

Because grand jury proceedings are secret, little is known about the specifics of the investigation.

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[1] Arango & Benner, With New Grand Jury, Justice Department Revives Investigation Into Death of George Floyd, N.Y. Times (Feb. 23, 2021), https://www.nytimes.com/2021/02/23/us/george-floyd-death-investigation-doj.html?searchResultPosition=1; Balsamo (Assoc. Press), Federal grand jury hearing evidence in death of George Floyd, StarTribune (Feb. 24, 2021).

 

 

 

Appellate Court Imposes Another Threat To Delay Start of Chauvin Criminal Trial   

A prior post discussed the order by the Minnesota Court of Appeals to the Hennepin County District Court to send its entire file to the appellate court and the threat that created to the scheduled start of the Derek Chauvin criminal trial on March 8.[1]

On February 23, the Court of Appeals imposed another threat to the scheduled start of that trial by setting a virtual hearing for the appeal next Monday, March 1 (at 1:00 p.m.) to hear arguments on whether or not a third-degree murder charge against Chauvin is permissible. It also ordered Chauvin’s attorney to file his response to this appeal this coming Friday (February 26).[2]

The latest order by the Court of Appeals also said that when a trial court denial of a motion to add a charge that arises from the same evidence for the current charges can have a “critical impact” meriting appellate review. “This is so because, if the prosecution is not permitted to charge a defendant in a single proceeding with all offenses arising out of a single behavioral incident, it is procedurally barred from doing so later after a conviction or acquittal on any of the offenses. Here, there is no dispute that the charge of third-degree murder arises from the same behavioral incident as the remaining charges.”  As a result, the Court of Appeals denied Chauvin’s motion to dismiss the appeal.

Joseph Daly, emeritus professor at Mitchell Hamline School of Law, said that however and whenever this appellate court rules, this development is likely to delay the Chauvin trial. If the third-degree charge is sustained, Chauvin’s attorney could argue for more time to prepare for trial and any denial of such a request would give Chauvin an argument for denial of due process. Moreover, whoever loses in the Court of Appeals could ask for review by the Minnesota Supreme Court, which would take months to resolve.

At the same time in a separate order,the Court of Appeals denied the prosecution’s request to expedite review of the trial court’s denial of third-degree murder aiding and abetting charges against the other three defendants (J. Alexander Kueng, Thomas Lane and Tou Thao). Instead, oral arguments on that aspect of the appeal will be heard at a later date.

The same legal issue is involved in the third-degree murder conviction of  another former Minneapolis police officer, Mohamed Noor, who on February 25 filed a petition for review by the Minnesota Supreme Court. If that court refuses to hear his appeal, the Court of Appeals decision in his case expanding the scope of such a charge will stand. [3]

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[1] Has the Chauvin Trial  Been Delayed????, dwkcommentaries.com (Feb.  23, 2021).

[2]  Xiong, Court of Appeals will hear arguments to add third-degree murder charge in George Floyd  case, StarTribune (Feb. 23, 2021); Assoc. Press, Appeals court to weigh 3rd-degree murder charge for Chauvin, Wash. Post (Feb. 23, 2021); Order, State v. Chauvin, A21-0201 (Minn.. Ct. App. Feb. 23, 2021); Order, State v. Chauvin, Kueng, Lane & Thao. #!21-0201 & #A21-0202 (Minn. Ct. App. Feb. 23, 2021). Copies of the Court of Appeals documents can be obtained on the District Court of Minnesota website: https://www.mncourts.gov/media/StateofMinnesotavDerekChauvin.

[3] Olson, Former Minneapolis cop Mohamed Noor asks state Supreme Court to hear his third-degree murder appeal, StarTribune (Feb. 25, 20210.