Prosecution Requests One Trial this August in George Floyd Criminal Cases  

On January 19 the State of Minnesota asked Hennepin County District Court Judge Peter Cahill to establish one trial of all four defendants, but starting in August (not March 8).[1]

This request asks the Court to rescind last week’s order establishing two trials in these cases: Derek Chauvin to start March 8 and the other three defendants –Thomas Lane, J. Alexander Kueng and Tou Thau—to start August 23. This prior conclusion was based upon a request from the Court’s Chief Judge and upon the following finding by Judge Cahill: “The physical limitations of courtroom C-1856, the largest courtroom in the Hennepin County Government Center, make it impossible to comply with Covid-19 restrictions in a joint trial involving all four defendants beginning March 8, 2021, given the number of lawyers and support personnel the parties have now advised the Court are expected to be present during trial.”[2]

The State’s request for only one trial in August was supported by an affidavit from Dr. Michael Osterholm, Director of the Center for Infectious Disease Research and Policy at the University of Minnesota, that made  the following points:

  • After asserting many medical facts about the COVID-19 coronavirus, Osterholm stated, “In light of the increased transmissibility of the new variant [of the virus], the fact that the vaccine will not yet be available to most of the public in March 2021, the length of the trial, and the number of people expected to be present at the trial, it is extremely likely that one or more of the dozens of participants in this trial—lawyers, witnesses, jurors or court staff—will contract the coronavirus during a trial held in March 2021.. . . In the event that a trial participant contracts the coronavirus during the trial, it often will not be sufficient simply to quarantine that individual and proceed with the trial. . . . In the event the Court holds a trial in this case in March 2021, the high risk of a potential superspreader event .  . . could significantly increase the burdens on the health care system at a time when cases, hospitalizations, and deaths are likely to be on the rise. From a public health perspective, it is therefore extremely unwise to hold a trial in this case in March 2021.” (Paras. 47, 48, 50.)
  • In addition, “Holding two separate trials in this case also endangers public health. From a public health perspective, it is far more dangerous to hold multiple trials—one in March 2021, and one in August 2021—that it would be to hold a single trial in the summer of 2021.”  (Para. 51.)


 Now we wait to see the reactions from the four defendants and Judge Cahill.

It is still surprising to this blogger that no one has mentioned that if Chauvin is first tried by himself and obtains a jury verdict of acquittal, there should be no need for a trial of the other three defendants who are accused of aiding and abetting Chauvin’s actions that a jury had determined to be non-criminal.


[1] Simons, Citing ‘serious threat to public health,’ prosecutors ask judge to reconsider holding two trials in George Floyd’s death, StarTribune (Jan. 19, 2021); State’s Motion for Reconsideration of January 11 Order Regarding Trial Continuance and Severance, State v. Chauvin,  Court file No. 27-CR-20-12646 (Hennepin County District Court Jan. 19, 2021); Affidavit of Michael T. Osterholm,  Court file No. 27-CR-20-12646 (Hennepin County District Court Jan. 19, 2021).

[2]  Chauvin To Be Tried Separately in George Floyd Criminal Cases, dwkcommentaries. com (Jan. 12, 2021).







Complications in Derek Chauvin’s Divorce Case

As noted in previous posts, soon after the May 25th killing of George Floyd, Derek Chauvin’s wife, Kelle Chauvin, filed a divorce petition in Stillwater (Washington County), Minnesota where they lived and last November the local judge rejected the couple’s proposed financial settlement after noting “The court has a duty to ensure that marriage dissolution agreements are fair and equitable” and “One badge of fraud is a party’s transfer of substantially all of his or her assets.”[1]

Last week the couple filed a public version of their divorce agreement which would award Derek Chauvin $ 420,768 while his wife would receive $703,718.[2]

A Minnesota divorce attorney who is not involved in this case, Jack DeWalt, observed, “Overall, this division continues the underlying concern of the divorce being utilized as a vehicle to shift assets out of Mr. Chauvin’s name as a means to protect the underlying assets from civil litigation [related to the death of Mr. Floyd], and thereby using the dissolution process to preserve assets rather than to effectuate a full and fair settlement in a divorce.”

The couple also face state criminal felony charges in that state court  for failure to report $464,433 in joint income dating back to 2014.


[1] Derek Chauvin’s Wife’s Divorce Petition Raises Questions, (July 8, 2020); State Court Rejects Chauvin Divorce Settlement, (Nov. 20, 2020).

[2] Xiong, Derek Chauvin’s estranged wife would receive most of their assets in proposed divorce settlement, Star Tribune (Jan. 19, 2021); Xiong, Judge orders Derek and Kellie Chauvin to file public documents in divorce case, StarTribune (Jan. 13, 2021).

Pandemic Journal (# 37): Praying for a Peaceful Presidential Transition and Nation

My last Pandemic Journal of January 2, recorded being pleasedthat Joe Biden and Kamala Harris won the U.S. presidential and vice presidential election in early November with the largest number of popular votes in U.S. history, 81,283,485, which was 7,059,741 more than those for Donald Trump and Mike Pence. The Electoral College [vote on December 14] was 306 to 232. Nevertheless, the country has been subjected to the unjustified outrage of Trump and some Republicans with ridiculous lawsuits challenging the results in some states, all scornfully dismissed, many by Trump-appointed federal judges. Next week, on January 6 there will be a joint session of the Congress to tabulate the results of the Electoral College, which some Republicans are planning to use to mount other ridiculous challenges, which should fail, thereby making it almost official for the January 20th inauguration of Biden and Harris. But even that important cause for celebration is subject to the risk of armed violence instigated by Trump supporters at the urging of Trump himself.” [1]

Unfortunately that fear was corroborated by Trump’s January 6th inciting his supporters’ insurrection at the U.S. Capitol that caused five deaths, the threatening the lives and safety of Senators. Representatives, staffers and others and interrupting the Congress’ confirmation of the results of the Electoral College.  The Congress, however, in the early morning of January 7th was able to resume its constitutional responsibility to confirm the Electoral College votes for Biden and Harris. [2]

A week later, the House on January 13th voted  232 (including 10 Republicans) to 197 to impeach Trump for inciting the insurrection, contrary to his constitutional obligation. Now we pray for the Senate’s upcoming trial and conviction of Trump, including a bar on his ever again holding public office. [3]

Now we also await the January 20th inauguration of Biden and Harris on the western porch of the U.S. Capitol while the Capitol grounds are blocked off to the public and surrounded by U.S. National Guard forces. There also have been threatened demonstrations by Trump supporters around the country, including the Minnesota State Capitol in St. Paul. We pray that there will no violence on this important day at the U.S. Capitol and around the country and that Trump before he leaves office will not issue additional pardons, including to himself and members of his family.[4]

In the meantime, my spirits were lifted this morning by attending via ZOOM a joint worship service of my church, Westminster Presbyterian, and our partner, Liberty Community Church, the first and only African American led Presbyterian congregation in Minnesota. The moving sermon, “Living the Dream,” by Rev. Gregory J. Bentley was filmed and recorded at his church, Fellowship Presbyterian Church in Huntsville, Alabama; he also served last year as Co-Moderator of the 224th General Assembly of our denomination, the Presbyterian Church (USA).[5]

The music at the worship service also was inspiring. The Offertory, “Raise Up,” and the Postlude, “Diamonds of the Soul,”were composed and sung by Joe Davis, Westminster’s Artist-in-Residence, along with Imani Waters, vocalist, and Nil Adjetey Mensah, bass. [6]

At the service we joined in singing  three  African-American spirituals: “Keep Your Lamps Trimmed and Burning,” “Guide My Feet” and “We Shall Overcome.” The last  had especial meaning because of its use during the Civil  Rights movement of the 1960s and its reminders that once again we need faith and persistence to overcome today’s problems. Here are its lyrics:

  • “We shall overcome,; we shall overcome; we shall overcome some day.”
  • “We’ll walk hind in hand; we’ll walk hand in hand; we’ll walk hand in hand someday.”
  • “We are not afraid’ we are not afraid; we are not afraid today.”
  • “God will see us through; god will see us through; God will see us through today.”

The Refrain, of course, is the following: “O, deep in my heart I do believe we shall overcome some day!”


[1]  Pandemic Journal (# 36): Perspectives on the Years 2020  and 2021, (Jan. 2, 2021).

[2] E.g., 2021 storming of the United States Capitol, Wikipedia; Fandos & Cochrane, After Pro-Trump Mob Storms Capitol, Congress Confirms Biden’s Win, N.Y. Times (Jan. 7, 2021).

[3] E.g., Second impeachment of Donald Trump, Wikipedia.

[4] E.g., Feuer & Benner, Inaugural Security Is Fortified in D.C. as Military and Police Links Are Eyed in Riot, N.Y. Times (Jan.  14, 2021); McDonald, Rhyne & Laffin, Capitol Under Lockdown Ahead of Inauguration (Video), N.Y. Times (Jan. 17, 2021); Schmidt & Vogel, Prospect of Pardons in Final Days Fuels Market to Buy Access to Trump, N.Y. Times (Jan.17, 2021).

[5] A recording of the ZOOM service and the its bulletin are available online.

[6] Pandemic Journal (#29): Current Reflections on COVID-19 Pandemic, (Sept. 20, 2020) (account of Joe Davis at an earlier Westminster worship service).


Defendants Identify Expert Witnesses in George Floyd Criminal Cases   

On January 14 and 15 the four defendants in the George Floyd criminal cases filed expert witness disclosure statements.

Derek Chauvin’s Disclosures[1]


  1. Forensic Pathology:

Primary Examiner: David R. Fowler, MB, ChB. M.Med. Path.

Peer Reviewers: William R. Oliver, M.D., M.S., M.P.A.; Brian L. Peterson, M.D.; Ljubisa Jovan Dragovic, M.D., F.C.A.P., F.A.A.F.S; Kanthi DeAlwis, M.D.; and Kimberly Ann Collins, M.D.

  1. Forensic Toxicology

Primary Examiner: Gary W. Kunsman, PH.D., F-ABFT.

Peer Reviewers: Aahraf Mozayani, PHARM.D., PH.D., F-ABFT; Lionel Raymon, PHARM. D., PH.D.; and Sara J. Schreiber, MS.

  1. Forensic Psychiatry: Dr. Michael Welner.
  2. Emergency Medicine: Dr. Kai Sturmann.


Barry Brodd, Bozeman, MT.

Other Defendants’ Expert Disclosures

On  January 14 and 15 the three other defendants made their initial expert disclosures. Since their trial is not scheduled to start until August, they made indirect references to experts in the Chauvin case plus the following:

  • Alexander Kueng and Tou Thau: Use of Force and/or Minneapolis Police Procedure (Steve Ijames) and Medical/Scientific (Dr. David R. Fowler).[2]
  • Thomas Lane: Use of Force and Related Policies, Training, Intervention, Detention and Arrests (Greg Meyer).[3]


[1] Initial Expert Disclosures, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County District Court Jan. 15, 2021); [Chauvin Expert Witnesses’]  Curriculum Vitae, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County District Court Jan. 15, 2021).

[2] Defendant’s Initial Expert Disclosure, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County District Court Jan. 14.  2021); Attachment to Defendant’s Initial Expert Disclosure, State v. Kueng, Court File No.27-CR-20-12953 ((Hennepin County District Court Jan. 14,  2021); Defendant’s Initial Expert Disclosure, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County District Court Jan. 15, 2021).

[3] Expert Witness Notice, State v. Lane, Court File No.  12951 (Hennepin County District Court Jan. 14,  2021). Greg Meyer is a retired Los Angeles police captain who testified for the defense in the 1994 civil trial for money damages over the killing of Rodney King and who is a critic of bans on police use of chokeholds. (Xiong, L.A. police captain who testified in Rodney King case will serve as expert witness in George Floyd trial, StarTribune (Jan. 14, 2021).)

Chauvin To Be Tried Separately in George Floyd Criminal Cases

On January 11, Hennepin County District Court Judge Peter Cahill decided that Defendant Derek Chauvin will be tried separately starting March 8. Assuming that Chauvin is convicted of second degree murder and/or second degree manslaughter, the other three defendants, all accused of aiding and abetting those crimes–Thomas Lane, J. Alexander Keung and  Tou Thau—will be tried starting August 23.[1]

The Court’s Order[2]

Findings of Fact

“The State did not engage in any intentional violation of discovery rules. Any duplication of documents or disorganization of documents is attributable to the source” of the documents. (Para. 1.)

The State had difficulties obtaining a FBI report of its interview of Dr. Andrew Baker, but after obtaining that report the State delayed disclosing it to defense counsel for eight or nine days, which was material and inexcusable. The appropriate sanction is to expand the expert disclosure deadlines for the defense. (Para. 2.)

Chief Judge Barnette, after being advised that at least two defense counsel would need additional space in the courtroom for support staff, inspected Judge Cahill’s courtroom and concluded that it would not be “an adequate venue when enforcing social distancing.” Therefore, Judge Barnette asked Judge Cahill to consider “having less than all four defendants stand trial on March 8.” (Para. 5.)

“The physical limitations of courtroom C-1856, that largest . . .in the Hennepin County Government Center make it impossible to comply with COVIS-19 physical restrictions in a joint trial involving all four defendants beginning March 8.” (Para/ 6.)


The State’s motion to continue the trial . . . due to COVID-19 concerns is GRANTED IN PART AND DENIED IN PART.”(a) The Chauvin case shall take place as previously scheduled on March 8. The court’s previous order for joinder of all four defendants in one trial  is amended to sever Chauvin’s case. (b) The other defendants remain joined for trial to commence on August 23. (Para. 1.)

Jury selection in the Chauvin case will take place March 8-26 with Chauvin having 15 preemptory challenges and the State 5. In the other trial each of the three defendants shall have five preemptory challenges and the Stata 9. (Para. 2.)

The amended order of December 17 shall be amended to allow the State to “disclose expert reports and findings and complete written summaries of the subject matter for each expert’s testimony by March 1. (Para. 5.)

Chauvin’s motion for a copy of the Bureau of Criminal Apprehension’s investigative file with date stamps is granted if such a file exists.” (Para. 7.)

 Unresolved Issues[3]

Also pending before the Court, but not resolved by the above order were Kueng’s motion to change venue and challenges to the Court’s Questionnaire to prospective jurors.


[1] Fortiti, Officer with knee to George Floyd’s neck will be tried alone, Wash. Post (Jan. 12, 2021); Bailey, Minneapolis police officers charged in George Floyd’s death to be tried separately, Wash. Post (Jan. 12, 2021); Walsh, Derek Chauvin will be tried separately in death of George Floyd, StarTribune (Jan. 12, 2021).

[2] Order Regarding Discovery, Expert Witness Deadlines, and Trial Continuance, State v. Chauvin, Dist. Ct. File 27-CR-20-12646 (Hennepin County District Court Jan. 11, 2021).

[3] Pending Issues in George Floyd Criminal Cases, (Jan. 1, 2021).



“The U.S. needs a democracy overhaul” 

This was the first sentence of the Washington Post’s headline for its January 2 editorial. As a blogger who has frequently lamented the continued existence of the Electoral College, the overrepresentation in Congress of states with relatively fewer people, gerrymandering and other efforts by some states to restrict and discourage voting (especially of minority citizens) and the ongoing Republican effort to overturn last year’s presidential election that gave Joe Biden and Kamala Harris over seven million more votes than Trump and Pence, I was thrilled with this editorial, which is reprinted below.

Washington Post Editorial[i]

“SINCE LOSING reelection, President Trump has failed to overturn the results. But his post-election tantrum, not to mention his behavior before now, has magnified legitimate concerns about weaknesses in the nation’s democratic institutions. Mr. Trump lost the electoral college by a secure margin. What if he hadn’t? What will happen when a wanton president, an out-of-control state legislature or a hyper-partisan congressional majority sees a riper opportunity, based on a cockamamie legal theory or bad-faith execution of its duties, to reject the will of the voters?”

“In short, Mr. Trump and a disturbing number of Republican officials have made obsolete the old assumptions that each major party will play fair, that electoral results will reflect the will of the majority and that each side will willingly turn over power when defeated at the polls. The nation needs a top-to-bottom review of how it conducts elections, counts votes and assures the public of the democracy’s health, so that it resists those who want to restrict voting, trash legitimate ballots and leverage positions of trust to upend valid results. Among President-elect Joe Biden’s first acts should be to convene a high-level commission to recommend a democracy overhaul.”

“The review must be wide-ranging, beginning with the electoral college itself. The commission should examine ways to reduce the chance that a candidate can win the presidency without winning a majority of popular votes, or for a tied electoral college vote to be decided by the House. Maybe the cleanest way is simply to abolish the electoral college in favor of a straight national popular vote. Or maybe there is another idea — such as proportional allocation of electoral college votes between the top two candidates in each state — that makes more sense.”

“The commission should look at encouraging more voter participation. That could mean universal voter registration, which would make the process less arduous but potentially more secure, or making Election Day a holiday. Or perhaps mail-in balloting should be expanded, along with ditching signature-matching for more sophisticated methods of verifying voters’ identities. The commission could even review how mandatory voting has worked in places such as Australia.”

“A clearheaded review of ballot security could recommend smart ways to prevent fraud and promote voter confidence, while nixing measures that are more burdensome than helpful, such as strict voter-ID laws.”

“Some states and cities are experimenting with ranked-choice voting, which deserves more attention. This promising reform could eliminate the threat of third-party spoilers throwing elections to candidates most voters dislike.”

“Voters must be assured that their ballots are secure from malicious actors and administration incompetence alike. That means stronger national standards — and federal money — for voting equipment, staff and support, including stipulations on using statistically sound methods to audit vote counts. Simple changes — such as paying poll workers more, training them better, opening better-organized polling places more often and for longer, keeping better records, buying better machines — can make substantial differences in voters’ experience.”

“Americans should also have confidence that partisan officials will not be able to reject voting results. Internationally, the United States is unusual in that its chief voting administrators — state secretaries of state — are partisan elected officials. Mr. Trump has raised the specter of state legislatures assigning electoral college votes to their favored candidates or of partisan-influenced state canvassing boards failing to certify legitimate vote totals. The commission must find ways to reduce the possibility of partisan interference in the democratic process. For example, secretaries of state might be barred from running for higher office for a certain number of years or go through an accreditation process.”

“Finally, Americans should never again have to dig up rickety old laws to determine whether arcane electoral college counting procedures might offer federal lawmakers a route to overturning a presidential election by congressional vote. The commission should recommend a thorough update of the 1887 Electoral Count Act that eliminates the possibility that a partisan Congress could reject properly certified electoral votes, as Mr. Trump would like to see happen on Jan. 6.”

“There is much more that a democracy commission could consider. The nation’s democratic system, wounded and exposed from a rough 2020, cannot limp into 2024 in comparable or worse shape. Many of the questions raised in the past several weeks are not ones most Americans previously imagined they needed to contemplate. But they are now arguably the most important issues facing the country as it reckons with the Trump era.”


The editorial concludes with hyperlinked citations to several of the Post’s articles and editorials related to this editorial.

I thank the Post for this timely and meaningful editorial.


[i]  Editorial, The U.S. needs a democracy overhaul. Here’s what Biden’s first step should be, Wash. Post (Jan. 3, 2021).


Pandemic Journal (# 36): Perspectives on the Years 2020 and 2021

Everyone in the world has spent the year 2020 battling the coronavirus (COVID-19) in one way or another. The statistics: The World, Cases,  83.7 million; Deaths, 1.8 million. The U.S., 20.1 million and 347,248. Minnesota, 415,361 and 5,382.[1]

The good news near the end of the year was a U.S. federal agency approving two anti-coronavirus vaccines, each of which has been tested at 95% effective: Pfizer-BioMTech and Moderna  And the U.K. government recently has approved another vaccine, developed by Oxford University and AstraZeneca whle China reportedly has developed another vaccine.[2]

The U.S., however, has been experiencing difficulties in distributing the vaccines to the states, because the federal government does not have a national health system or a program or system for the states to decide on what groups of individuals will receive the vaccines first and how the vaccines will be administered to individuals. Another difficulty is the Pfizer vaccine needs to be kept at extremely low temperatures, which is impossible wherever special freezers are not available to store this vaccine. [3]

The New York Times editorial on December 31 harshly criticized the first two weeks of the vaccination campaign. “So far, things are going poorly. . . . Untold numbers of vaccine doses will expire before they can be injected into American arms, while communities around the country are reporting more corpses than their mortuaries can handle.. . . Of the 14 million vaccine doses that have been produced and delivered to hospitals and health departments across the country, just an estimated three million people have been vaccinated. The rest of the lifesaving doses, presumably, remain stored in deep freezers — where several million of them could well expire before they can be put to use.” The editorial continued:

  • “That’s an astonishing failure — one that stands out in a year of astonishing failures. The situation is made grimmer by how familiar the underlying narrative is: Poor coordination at the federal level, combined with a lack of funding and support for state and local entities, has resulted in a string of avoidable missteps and needless delays. We have been here before, in other words. With testing. With shutdowns. With contact tracing. With genomic surveillance.”
  • “The root problem is clear. Officials have long prioritized medicine (in this instance, developing the coronavirus vaccines) while neglecting public health (i.e., developing programs to vaccinate people). It’s much easier to get people excited about miracle shots, produced in record time, than about a dramatic expansion of cold storage, or establishment of vaccine clinics, or adequate training of doctors and nurses. But it takes all of these to stop a pandemic.”

Nevertheless, my wife and I are in general good health bolstered by being careful mask-wearers, avoiders of social gatherings and washing our hands after going out to buy groceries or downstairs in our condo building to take out recycling and compost and pick up the mail. In addition, we qualify for one of the groups that are supposed to be designated for early administration of the vaccine—those 75 years old and older. Therefore, we are not personally distressed by the current COVID and vaccine situation.

Therefore, we  are grateful and hopeful that in 2021 the U.S. will significantly improve its distribution and administration of the vaccines, that we will obtain our vaccinations, that the economy will reopen and expand, thereby bringing many unemployed workers back to work and eliminating or dampening worries about being or becoming homeless.

We also have to admit it is frustrating to be unable to go out and spend time with family and friends, to go to concerts and plays and to eat at restaurants, many of which are going out of business. (A small caveat. the Minnesota Orchestra is recording concerts by smaller contingents in an empty Orchestra Hall that are telecast on Friday nights on public television in the state. The smaller orchestra and groups also play many works that are new and not in the usual repertoire. We have enjoyed those concerts. One of these pieces that I especially enjoyed was a rare percussion trio, and listening to the piece made me think of a friend, Jeffrey Gram, who was a music professor for percussion and now frequently plays drums and other percussion instruments at our church, Minneapolis’ Westminster Presbyterian.)

One cannot forget that we were most pleased that Joe Biden and Kamala Harris won the U.S. presidential and vice presidential election in early November with the largest number of popular votes in U.S. history, 81,283,485, which was 7,059,741 more than those for Donald Trump and Mike Pence. The Electoral College was 306 to 232. Nevertheless, the country has been subjected to the unjustified outrage of Trump and some Republicans with ridiculous lawsuits challenging the results in some states, all scornfully dismissed, many by Trump-appointed federal judges. Next week, on January 6 there will be a joint session of the Congress to tabulate the results of the Electoral College, which some Republicans are planning to use to mount other ridiculous challenges, which should fail, thereby making it almost official for the January 20th inauguration of Biden and Harris. But even that important cause for celebration is subject to the risk of armed violence instigated by Trump supporters at the urging of Trump himself.[4]

In the meantime, on January 5th the State of Georgia has an unusual election of two U.S. Senators. The incumbents are Republicans—Kelly Loeffler and David Perdue. The Democratic challengers are Raphael Warnock and Jon Ossoff. This  election is enormously important. If both Democrats are elected, the Senate will be equally divided between the two parties and Vice President Harris as the presiding officer of that body will be able to break tie votes in favor of the Biden-Harris Administration. If, however, at least one of the Republican candidates is elected, the Republicans will maintain control of the Senate under the “leadership” of Senator Mitch McConnell (Rep., KY) and be able to thwart many of the Biden Administration measures. Even here, Trump is voicing unfounded claims that this Georgia election is ‘illegal and invalid.” Needless to say, the two of us are pulling for the Democratic candidates.[5]


[1] Coronavirus World Map: Tracking the Global Outbreak, N.Y. Times (Jan. 1, 2021); Coronavirus in the U.S.: Latest Map and Case Count, N.Y. times (Jan. 1, 2021);Track Coronavirus Cases Important to You: Minnesota, N.Y, Times (Jan. 1, 2021).

[2] Thomas, LaFraniere, Weiland, Goodnough & Haberman, F.D.A. Clears Pfizer Vaccine, and Millions of Doses Will Be Shipped Right Away, N.Y. Times (Dec. 11, 2020); Grady, Goodnough & Weiland, F.D.A. Authorizes Moderna Vaccine, Adding Millions of Doses to U.S. Supply, N.Y. Times (Dec. 18, 2020); Mueller & Robbins, U.K. Authorizes Covid-19 Vaccine From Oxford and AstraZeneca., N.Y. Times (Dec. 30, 2020); Wu, AstraZeneca and Sinpharm clear regulatory hurdles in a week of vaccine milestones, N.Y. Times (Dec. 31, 2020).

[3]  Stolberg & LaFraniere, Biden Promises 100 Million vaccine Shots in 100 Days, but Shortage Worries Rise, N.Y.Times (Dec. 8, 2020); Mohamed, Chokshi, Thomas, Goodnough, Hoffman & Kwal, Vaccine distribution is about to begin in the virus-ravaged U.S., N.Y. Times (Dec. 13, 2020); Calvan & Kunzelman, Race to vaccinate millions in US off to a slow, messy start, Assoc. Press (Dec. 31, 2020); Editorial, We Came All this Way to Let Vaccines Go Bad in the Freezer? N.Y. Times (Dec. 31, 2020); Hopkins & Camo-Flores, Covid-ap Vaccine’s Slow Rollout Could Portend More Problems, W.S.J. (Jan. 1, 2021).

[4] Assoc. Press, 2020 US election results; Barrett, Judge dismisses Gohmert lawsuit seeking to stymie Biden electoral college count, Wash. Post (Jan. 1, 2021); King, Fourteen days that will test our democracy, Wash. Post (Jan. 1, 2021);  Fausset,Trump Calls Georgia Senate Races ‘Illegal and Invalid,’ N. Y. Times (Jan. 1, 2020); Mascaro & Jalonick (Assoc. Press), GOP torn over Trump’s Electoral College challenge, StarTribune (Jan. 2, 2021); Wright, The Plague Year, The New Yorker (Jan.4 & 11, 2021) (the caption of the lengthy article says it covers, “The mistakes and the struggles behind an American tragedy”)..

[5] E.g., Herndon & Fausset, Early Voting Numbers in Georgia Senate Races Put G.O.P. on Edge, N.Y. Times (Dec. 30, 2020); Latest Polls Of The Georgia Senate Runoffs, Wash. Post (Dec. 31, 2020); Philips, What you need to know about the Georgia Senate runoff elections, Wash. Post (Jan. 1, 2021).

Pending Issues in George Floyd Criminal Cases

There have been four recent developments in the Floyd criminal cases. First, Defendant J. Alexander Kueng has reiterated his motion to change venue in the context of determining prejudice of potential jurors in Hennepin County. Second, the State has asked for a continuance of the trial, prompting an objection from Defendant Thomas Lane. Third, the State also has requested changes of expert discovery deadlines.

The fourth is a strange order in the Thao case only by the Chief Judge of District Court, Toddrick Barnette, denying the In-Person Hearing Request (by Judge Cahill?) for the January 7 hearing before Judge Cahill. Thus, presumably there will be a remote hearing on that date before Judge Cahill. [1]

Change Venue? [2]

Setting the Stage

On December 30, Defendant J. Alexander Kueng submitted his third brief for his motion to change venue. The brief in support of the motion, however, focuses on the Court’s December 8th Questionnaire and refers to documents that are not on the publicly available website for documents in the case.

The argument starts with the Scheduling Order, dated June 30, that states: “The parties shall meet and seek agreement on a proposed jury questionnaire and forward a draft of the proposed questionnaire to chambers by November 1, 2020. Parties my supplement the proposed questionnaire with individual questions upon which the parties did not agree. (Para. 2 (F) (emphasis in original).)

The argument then states, “On December 1, 2020, the defense and the state submitted questionnaires respectfully. See Exhibits 1 and 2 respectively.” (Emphasis in original).) No explanation is provided as to why these submissions were not made by November 1 as the Scheduling Order provided or whether the Court had extended the deadline to December 1.

The argument concludes, “on December 8, 2020, the parties were provided the ‘final form of the Juror Questionnaire’ via email from chambers. See (Exhibit 3-Index # 238). In the same message the parties were informed that the questionnaire had already been sent to prospective jurors or would be shortly. ‘Neither party was given the opportunity to review the questionnaire in advance or provide argument.” (This email from the Judge’s chambers also is not in the record available to the public, and a prior post noted that it was strange that the parties had not previously seen or approved this Questionnaire and that it was ambiguous as to whether it already had been sent to potential jurors.)

The Merits of the Attack on the Questionnaire

The sole legal authority cited by Kueng is U.S. v. Tsarnaev, 968 F.3d 24 (First Cir. July 31, 2020), a case involving appellate reversal of the conviction of the younger of two brothers who detonated two homemade bombs at the 2013 Boson Marathon that killed three people and injured hundreds more. The ground for this decision was the trial judge’s failure to conduct an adequate voire dire of potential jurors in this case when public “reporting of the events here– in the traditional press and on different social-media platforms –stands unrivaled in American legal history (at least as of today).” Indeed, “[r]eports and images of their brutality flashed across the TV, computer, and smartphone screens of a terrified public—around the clock, often in real time. One could not turn on the radio either without hearing about these stunningly sad events.”

This court (U.S. First Circuit Court of Appeals) already had addressed these issues in such cases of extensive pretrial publicity in Patricia v. United States, 402 F.2d 314, 318 (1st Cir. 1968). That case involved an organized-crime prosecution where the press called one of the defendants ‘Boss of the New England ‘Cosa Nostra’ and how an attorney for a government witness nearly died in a car-bomb incident.

In that and similar cases of pretrial publicity in its jurisdiction, the First Circuit directed that “on request of counsel, . . . the [trial judge] should proceed to examine each prospective juror apart from other jurors and prospective jurors, with a view to eliciting the kind and degree of his exposure to the case or to the parties, the effect of such exposure on his present state of mind, and the extent to which such state of mind is immutable or subject to change form evidence.”

The First Circuit emphasized, “Decisions about prospective jurors’ impartiality are for the judge, not the potential jurors themselves . . . .[a]nd that is because prospective jurors ‘may have an interest in concealing [ their] own bias’’ or ‘may be unaware of it.”

The trial judge in the Tsarnaev case, however, failed to meet this standard ‘by not asking potential jurors what they had read and heard about the case. Instead, the trial judge merely asked them whether they could decide this case based on the evidence and thereby made them the ‘judges of their own impartiality.’

In short, said the First Circuit, “a judge cannot delegate to potential jurors the work of judging their own impartiality.”

It also should be noted that at trial, the younger brother (Dzhokhar Tsarnaev) through his attorneys “conceded that he did everything the government alleged, but he insisted that Tamerlan [his now deceased older brother] was the radicalizing catalyst, essentially intimidating him in to acting as he had.” . . . Apparently unconvinced, a jury convicted him of all charges and recommended a death sentence on several of the death-eligible counts—a sentence that the district judge imposed (among other sentences).”

Postpone Trial? [3]

On December 31, the State filed a motion for continuance of the start of the trial from March 8 to June 7,2021. It states, “Although the State stands ready to try this case on the current trial date of March 8, it believes that a three-month continuance [to June 7] is in the best interests of public health.” This “high-profile trial is unique, and it pose unique public health risks.” The large number of people who will be directly involved plus possible public demonstrations all create the risk of community spread. Another complication is the upcoming COVID-19 public vaccination program, which could disrupt trial partipants and which may reduce the health risks of such a continuance.

On December 31, Defendant Thomas Lane had filed an objection to such a continuance merely stating that the “State and its expert, although all powerful, cannot see into the future.”

Earlier this month, Derek Chauvin’s attorney, Eric Nelson, filed a motion for a trial delay and told the StarTribune he had no objection to the State’s motion while the lawyers for Kueng and Thao had no definitive response regarding the State’s motion.

Change Discovery Deadlines? [4]

On December 24, the State asked for an amendment of the Scheduling Order of December 17 to establish new deadlines for submission of experts reports and rebuttal reports. Here are the new deadlines proposed by the State:

• February 1 for “all parties’ expert reports;”
• February 19, for expert rebuttal reports;
• February 26, for all motions in limine regarding expert reports and testimony;

The State argued that the Court’s original Scheduling Order of October 8 “provided deadlines that balanced the rights and obligations of the parties with respect to expected expert witnesses.” However, without notice to the parties, the Court on December 17 “significantly altered the existing expert witness deadlines only for the Defendants, thereby depriving the State of adequate advance notice of Defendants’ expert disclosures, impairing the State’s ability to obtain its expert reports and prepare for trial, and giving the Defendants substantially more time than the State to obtain expert reports.”

The State also requested an order requiring each Defendant to file a written waiver of their right to be present if they elect to not appear at the January 11 hearing. According to the State, a “criminal defendant has a right to be present at critical stages of the criminal proceedings” and a waiver of that right must be made personally by the defendant.

All of the above dates for expert disclosures may be affected if the court grants the State’s motion for a postponement of the start of trial.


As a retired attorney without criminal law experience, I think the Tsarnaev case raises serious questions about the legitimacy of Judge Cahill’s handling of the Questionnaire to the potential jurors, including at least the following: the phrasing of some of the questions; distributing it to a pool of potential jurors apparently without prior disclosure to the parties and obtaining their comments; and distributing it to an undisclosed number of potential jurors around four months before the commencement of trial.

Getting these issues straightened out along with resolving the other issues raised by the parties discussed above also suggests that the trial should be delayed.

As always, I invite other reactions to these issues by adding comments to this post.

[1] Order re Pandemic In-Person Hearing Request, State v. Thao, Hennepin County District Court, Court File No. 27-CR-20-12949 (Dec. 30, 2020).

[2] [Kueng’s] Third Supplemental Memorandum Notice of Motion and Motion To Change Venue, State v. Kueng, Hennepin County District Court, Court File No. 27-CR-20-12953 (Dec. 30, 2020). See also Court’s Questionnaire for Prospective Jurors in George Floyd Criminal Cases, (Dec. 23, 2020),

[3] State’s Motion for Continuance of Trial, State v. Chauvin, Hennepin County District Court,, Court file NO. 27-CR-20-12646 (Dec.31, 2020); Affidavit of Ezekiel Jonathan Emanuel, State v. Chauvin, Hennepin County District Court,, Court file NO. 27-CR-20-12646 (Dec.31, 2020), [State’s] Memorandum in Support of Motion for Continuance of Trial, State v. Chauvin, Hennepin County District Court, Court file NO. 27-CR-20-12646 (Dec.31, 2020), State v. Chauvin, Hennepin County District Court,, Court file NO. 27-CR-20-12646 (Dec.31, 2020); [Chauvin] Defendant’s Notice of Motion and Motion for Continuance, State v. Chauvin, Hennepin County District Court,, Court file NO. 27-CR-20-12646 (Dec. 14, 2020), Thomas Lane’s Objection to State’s Motion To Continue, State v. Lane, Hennepin County District Court, Court file NO. 27-CR-20-12951 (Dec. 31 2020); Walsh, Citing COVID, prosecutors seek 3-month delay in ex-officers’ trial over George Floyd death, StarTribune (Dec. 31, 2020). Earlier Defendant Thao had filed a motion for trial delay due to the State’s alleged failure to provide timely disclosure of evidence, especially documents about an interview of Hennepin County Medical Examiner Andrew Baker on July 8, and on December 18, the State denied those allegations. (Simons, Prosecutors in Floyd case deny defense claims that they delayed sharing evidence, StarTribune (Dec. 19, 2020).)

[4] State’s Motion To Amend December 17 Scheduling Order on Expert Disclosures, State v. Chauvin, Hennepin County District Court,, Court file NO. 27-CR-20-12646 (Dec. 24, 2020); State’s Memorandum in Support of Motion To Amend December 17 Scheduling Order on Expert Disclosures, State v. Chauvin, Hennepin County District Court,, Court file NO. 27-CR-20-12646 (Dec. 24, 2020). See also Court Issues Order on Expert Disclosures in George Floyd Criminal Cases, (Dec. 18, 2020).

Comment: Hearing in George Floyd Criminal Cases Considers Delay in Trial and Prosecution’s Alleged Abuse of Discovery Obligations  

On January 7, Hennepin County District Court Judge Peter Cahill held a hearing on motions to postpone the trial and to impose sanctions on the prosecution for alleged failure timely to provide certain reports.

The Judge said he thought the prosecution had acted in good faith, but should have immediately stamped the report regarding an interview of the Hennepin County Chief Medical Examiner, sent it through the scanner and transmitted it to defense counsel.

The Judge did not rule on the motions to delay the trial (or any other pending motion), but said that delaying the Floyd trial because of COVID-19 concerns would simply put participants in other cases at risk because “Somebody is going to be in [his] courtroom . . .come March 8.”


Xiong, Prosecutors in George Floyd case mishandled sharing evidence, defense attorneys continue to allege, Star Tribune (Jan. 7, 2021),; Bailey, Judge in George Floyd case hears motions to delay March trial, Wash. Post (Jan. 7, 2021),

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

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

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


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

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

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

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

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

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

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

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


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


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


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

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

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

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

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

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


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

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

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

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


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

Prior Court Comments About Jury Issues

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

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

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


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

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

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

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


[1] Special Juror Questionnaire [blank],State v. Chauvin, Dist. Ct. File 27-CR-20-12646 (Dec. 22, 2020),;

Bailey, Potential Jurors in George Floyd Case asked if they support defunding the police, amid concerns about ‘fair and safe’ trial, Wash. Post (Dec. 22, 2020),

[2] Results of 9/11/20 Hearing in George Floyd Criminal Cases, (Sept. 12, 2020),;

Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing, (Nov. 5, 2020),;

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

Court Affirms Livestreaming of George Floyd Criminal Trial  

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

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

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

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


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


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

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

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