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Minnesota’s U.S. Senators’ Statements at Walter Mondale Memorial

At the May 1 memorial service for Walter Mondale, Minnesota’s U.S. Senators Amy Klobuchar and Tina Smith made the following statements of praise about him.[1]

Senator Klobuchar’s Statement

“It was not easy for Walter Mondale to run against Ronald Reagan, knowing that most people were predicting that Reagan would win.”

“It was not easy for Walter Mondale to come out of retirement and run for the Senate after we lost Paul Wellstone.”

“It was not easy for Walter Mondale to continue his work while caring for his beloved wife, Joan, and their daughter, Eleanor, through heartbreaking illnesses.”

“None of it was easy. But when saddled with enormous setbacks, Fritz didn’t stand down; he stood up. Fritz didn’t crawl under his desk or hide from public view; he simply found a different way to serve.”

“He went from being driven around with tons of Secret Service and meeting with world leaders and negotiating international treaties to going into Lunds, grocery shopping on his own and happily ending his visit with a long, engaged talk about Mideast peace with the high school kid at the checkout counter. That happened.”

“You see, being humble meant that it was much easier to be resilient.”

“Being grounded meant that no matter how high he had risen, there was always a place to come home.”

“That place was here. That place was us.”

Senator Smith’s Statement

“This week, I have been reading a lot of tributes to Mr. Mondale’s life and his legacy,” including those from Presidents Carter, Clinton and Obama.

As I’ve been reading all these notes, I’ve been reading some sent by people who worked for Walter Mondale when he ran for president and never really left his orbit. One is from a former staffer, Gina Glantz, who told the story of how, when her mom got sick, and the Mayo Clinic seemed like really the only option for treatment, she worked up the nerve to ask Mr. Mondale for help. Well, Vice President Mondale called a retired nurse friend, and within weeks, Gina’s mother was at the Mayo, with the person behind the check-in desk at Mayo saying, ‘And how do you know our Fritz?’”

“So many Americans were called to action by that 1984 campaign, a campaign rooted in truth and decency and hope. And four decades later, many of them, many of you, are still involved in politics, still working to uphold the values that defined Walter Mondale’s remarkable life — and even though many of us have yet to find a boss who, really, we had such a personal connection to.”

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[1] Excerpts from speeches and letters read at Walter Mondale’s memorial, StarTribune (May 1, 2022).News Release, Klobuchar Delivers Remarks at Memorial Service for Former Vice President Walter Mondale (May 1, 2022).

Federal Criminal Trial for Killing of George Floyd: Prosecution Witnesses (Part II)

On Monday morning (February 7) the federal criminal trial of former Minneapolis policemen (J. Alexander Kueng, Thomas Lane and Tou Thau) resumed in the federal courthouse in St. Paul before U.S. District Judge Paul Magnuson and a jury of 12 and 6 alternates. During the first phase of the trial (January 24-28, 31 and February 1-2), the prosecution presented 11 witnesses.[1] The following is a summary of the testimony of the eight prosecution witnesses who testified in this resumption of the trial through February 11.[2]

Dr. David M. Systrom, Jr.

A physician at Boston’s Brigham and Women’s Hospital and assistant professor of medicine at Harvard Medical School and an expert witness for the prosecution, Dr. Systrom first described how the lungs and diaphragm work: breathing in compresses the stomach, spleen and liver with carbon dioxide being the waste product of cellular metabolism, and if it does not leave the body, it will build up in blood and tissue (acidosis.)

In his opinion, George Floyd died of asphyxia due to compression of his upper airway and inadequate breathing caused by being held in prone position. Yet this “was an eminently reversible respiratory failure right up until the time he lost consciousness.” It “was quickly reversible if the impediments to breathing were removed.” But they were not removed, and the “fatal combination” of “obstruction and restriction” of his breathing ultimately caused him to lose consciousness and his heart to stop.

Dr. Systrom noted how “Floyd’s position on the ground with his arms cuffed behind his back and the officer on top of him was problematic” as the arms and shoulders work as “adjunct respiratory muscles” to help create space for full diaphragmatic breathing. This restricted breathing resulted in low lung volume and inability to draw sufficient breathe leading to complaints about “shortness of breath” followed by Floyd’s loss of consciousness.

Also supporting Systrom’s opinion was Floyd’s end-tidal carbon dioxide level of 73 milliliters of mercury, twice the normal level and “life threatening” and often associated with an increase in the hydrogen ion concentration in the blood and low oxygen. In addition, he testified that there was no evidence suggesting a heart rhythm disorder or effects of methamphetamine or fentanyl.

Even after Floyd’s heart stopped, Dr. Systrom testified, there was still a chance to save him if CPR had been started immediately, but that did not happen.

Nicole Mackenzie

MPD’s medical support coordinator, Mackenzie testified that Kueng and Lane recently were in her MPD academy “emergency medical responder” class. They were taught about the need to roll subjects into the “side recovery position” so they could breathe instead of keeping them prone on their stomachs. They also were taught that responders have a duty of care to people in medical emergencies.

Kueng and Lane, she testified, acted inconsistently with that training when they continued to restrain Floyd after he became compliant and showed clear signs of needing help, including struggling to breathe.

When Mackenzie was asked about Thao, his attorney’s objection was sustained because Thao was not present in the video shown by Mackenzie.

That attorney presented PowerPoint training materials used by MPD until last year showing officers pinning a man down by his neck when responding to an excited delirium call and another showing a nude man punching through a wooden fence and fighting off a horde of police officers trying to subdue him. Under those circumstances, Mackenzie said, “your normal techniques for compliance might not work” and restraining someone, even with a knee, might be a life-saving measure.

Vik Bebarta

Another prosecution expert witness was Vik Bebarta, professor of emergency medicine, toxicology and pharmacology at the University of Colorado in Denver. She testified that Floyd died from “a lack of oxygen to his brain” when he was “suffocated and his airway was closed [and] he could not breathe.” “When the airway is blocked, you pass out, stop breathing and your heart stops.”

In addition, he said that the amounts of methamphetamine and fentanyl were too low to have caused his death. Videos of Floyd in Cupp Foods before the encounter with the police outside showed him carrying a banana and talking to clerks and other customers. Floyd was alert. “There is no sign that he was showing any signs of an imminent drug overdose.” In contrast, someone “heavily impaired would not laugh or smile or have a conversation.” In addition, Floyd subsequently was able to walk handcuffed with police from his car to the police car across the street.

Bebarta also said Floyd did not display any symptoms typically associated with the excited delirium condition, such as high pain tolerance, superhuman strength and endurance and he did not die from what would be referred to as that condition.

Under cross examination, Bebarta admitted that police officers do not have the education and experience of medical doctors, but they learn basic life support and “have the ability to check a pulse and check for breathing.”

Bebarta also noted the three-minute lag between (a) paramedic Derek Smith’s arriving on the scene and checking Floyd’s carotid artery for a pulse and (b) the start of chest compressions in the ambulance when every minute of delay in starting CPR reduces a patient’s chances of survival by 10%.

Under cross-examination by Paule, Bebarta says the slang “speedball” refers to Heroin and cocaine. Sometimes people “rectally” take drugs that sometimes is referred to as “hooping.” “Excited delirium” is not a diagnosis and does not have a good list of symptoms, but often shows as agitation with psychosis. Floyd did not exhibit delirium.

McKenzie Anderson

A scientist with the Minnesota Bureau of Criminal Apprehension, Anderson was in charge of processing Floyd’s car and one of the squad cars on May 25, 2020. She testified that pills found in his car tested positive for methamphetamine.

Under cross-examination by Gray, Anderson says on 5/27/20 she seized from Floyd’s car: shoes, strap and blood stains. She did not see or seize any pills. This search was looking for blood evidence, counterfeit money and a cell phone.

She also said that a lab determined that a pill from the squad backseat contained methamphetamine and Floyd’s saliva and thus probably came from his mouth. From Floyd’s car she seized $20 bills that turned out to be counterfeit, which are illegal to possess.

In a December 2020 search of Floyd’s car, she collected two pills that later were identified as a “mixture of fentanyl and methamphetamine.”

Richard Zimmerman

A MPD Lt. and its most senior officer, Zimmerman sais if an officer (from lowest in rank to chief) sees another officer using too much force or doing something illegal, you need to intervene and stop it.

On 5/25/20 at home, he received call to go to 28^th & Chicago because an arrestee had to go to hospital. There he met officers outside Cup Foods about 90 minutes after Floyd died. He asked Lane and Kueng what’s going on.

Thomas Lane’s body cam video showed him telling Zimmerman that they did not know Floyd’s condition and that Floyd seemed like he was on something, “just kind of paranoid.” Nor did Lane say that Floyd had been pinned under Chauvin’s knee for more than nine minutes or that the officers could not detect Floyd’s pulse or that he had appeared to stop breathing.

Zimmerman testified, “The knee on the neck—the officers should have intervened at that point and stopped it. . . . It can be deadly.” And “rank and seniority don’t change the duty to intervene.” Moreover, Zimmerman admitted he had thought poorly of Chauvin and “I think it’s pretty much known throughout the department that he’s a jerk.”

Kelly McCarthy

McCarthy, the Mendota Heights Police Chief, testified in his role as Chair of the Minnesota Board of Peace Officer Standards and Training, which licenses all officers in Minnesota. He said, Once someone is in your custody [as an officer], they are essentially your baby. You have restricted their freedom of movement. . . so there are things they can no longer do for themselves, so because you’re the one who took them into custody, you are now responsible for those things.” These officers’ training includes learning about “positional asphyxia” and the risk of handcuffing someone, use-of-force and civilians’’ constitutional rights. Training on use-of-force and firearms is annually required.

Alyssa Funari

On May 25, 2020, Ms. Funari, then 17 years old, was at Cupp Foods and observed the police restraining George Floyd on the pavement. His distress, she testified, was obvious to several bystanders, as they observed the policemen ignore pleas to relent and render aid. She said she “instantly knew Floyd was in distress. . . He was moving, making facial expressions that he was in pain. He was telling us he was in pain.” She warned the officers that Floyd was near unconsciousness. At one point, she “observed that over time he was slowly becoming less vocal and he was closing his eyes. He wasn’t able to tell us he was in pain anymore and he was just accepting it.” She said, “Is he talking now? He’s about ready to knock out.” Yet she did not see any of the officers provide aid to Floyd.

Under cross examination by Thao’s attorney, Robert Paule, Funari said, I “believe he [Thao] did look” at the other officers restraining Floyd. “He might not have been watching the whole time, but he knew what was going on.” He turned around “a few times” to observe the other officers and Floyd .

Matthew Vogel

A FBI special agent, Vogel presented snippets of bystander and police video with timelines and transcripts to help the jurors sort out sometimes confusing videos. It included video of Kueng and Lane talking to Sergeant David Pleoger about what had happened, but saying incorrectly that Floyd was still breathing when paramedics arrived and not saying anything about their inability to find Floyd’s pulse.

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[1] Federal Criminal Trial for Killing of George Floyd: Prosecution Witnesses (Part I), dwkcommentaries.com (Feb. 2, 2022).

[2] Olson, Pulmonologist says officers could have saved George Floyd’s life, StarTribune (Feb. 7, 2022); Karnowski & Webber (AP), Lung expert: Officers could have saved George Floyd’s life, AP News (Feb. 7, 2022); Mannix & Olson, Officers ‘inconsistent’ with medical training when they detained George Floyd, says police trainer, StarTribune (Feb. 8, 2022); Karnowski (AP), Police trainer testifies: Officers failed to aid Floyd, Twin Cities Pioneer Press (Feb. 9, 2022); Olson, Second physician testifies George Floyd died of asphyxia, not drugs or heart attack, StarTribune (Feb. 9, 2022); Karnowski (AP), Toxicologist: Drugs, ‘excited delirium’ didn’t kill Floyd, Assoc. Press (Feb. 10, 2022); Xiong & Olson, New footage played in federal trial shows officers did not tell superior that Floyd had no pulse, appeared to stop breathing, StarTribune (Feb. 10, 2022); Karnowski (AP), Lieutenant: Officers should have intervened in Floyd killing, AP (Feb. 10, 2022); Bailey, Officers charged in George Floyd’s killing omitted key details from the scene, Minneapolis officer testifies, Wash. Post (Feb. 10, 2022); Olson & Xiong, New body camera video: Officers didn’t tell second supervisor about restraint of Floyd, StarTribune (Feb. 11, 2022); Forliti & Karnowski, Teen bystander: Knew instantly Floyd was ‘in distress,’ Asoc. Press (Feb. 11, 2022); Live: Federal trial of 3 former Minneapolis officers in George Floyd death, StarTribune.

Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment

On June 25, Hennepin County District Court Judge Peter Cahill entered the following order, “ As to Count I, based on the verdict of the jury finding you guilty of unintentional second-degree murder while committing a felony under Minn. Stat. sec. 609.19, subd. 2(1), it is the judgment of the Court that you now stand convicted of that offense. Pursuant to Minn. Stat. sec. 609.04, Counts II and III remain unadjudicated as they are lesser offenses of Count I.”

Therefore, the “Court commits . . . [Derek Chauvin] to the custody of the Commissioner of Corrections for a period of 270 months [22.5 years]. You are granted credit for 199 days already served.”[1]

With this sentence, the Minnesota Department of Corrections has said that if Chauvin qualifies by good behavior in prison, he would be released from prison on December 10, 2035, which will be when Chauvin is 59 years old, followed by supervised parole until June 8, 2043.

Court’s Opinion Regarding This Sentence[2]

Judge Cahill first reviewed the Minnesota Sentencing Guidelines, which were promulgated “to establish rational and consistent sentencing standards the promote public safety, reduce sentencing disparity, and ensure that the sanctions imposed . . . are proportional to the severity of the . . . offense and the offender’s criminal history.” The Guidelines also establish “presumptive ranges” for the offenses and for most cases, the maximum sentence that may be imposed is at the top of that range.

However, the Guidelines also recognize that there are cases when the guidelines may not be appropriate and that a different sentence may be imposed for “substantial and compelling circumstances,” i.e., when the “defendant’s conduct in the offense . . . was significantly more or less serious than that typically involved in the commission of the crime in question.” (Emphasis in original quotation of Minnesota Supreme Court case.)

Here, the presumptive range of a sentence for second-degree murder is 128 to 180 months with a presumptive sentence of 150 months (12.5 years). To deviate from these guidelines, the court (or jury) must find that there were one or more “aggravating factors” in the crime at issue. Here, the court determined that there were two such “aggravating factors”: Chauvin abused a position of trust and authority and Chauvin treated Mr. Floyd with particular cruelty.

Although the court previously had concluded there were two other aggravating factors–children were present during the commission of the crime and Chauvin committed the crime with the active participation of three other former Minneapolis policemen—Judge Cahill for various reasons declined to use them for determining the sentence.

Judge Cahill then sought “to effectuate the Minnesota guidelines policy of reducing sentencing disparity” by examining Minnesota sentences over that last ten years for murder in the second-degree. For all such sentences, 67% were within the presumptive guidelines range while 20% were upward departures and 13% were downward departures. Moreover, the most common aggravated sentence has been 240 months (20 years) while the average aggravated departure for defendants with a zero criminal history score [like Chauvin] was 278.2 month (23.2 years).

Therefore, the court concluded, “Mr. Chauvin, rather than pursuing the MPD mission [to give citizens ‘voice and respect’], treated Mr. Floyd without respect and denied him the dignity owed to all human beings and which he certainly would have extended to a friend or neighbor. In the Court’s view, 270 months, which amounts to an additional ten years over the presumptive 150-month sentence, is the appropriate sentence.” In other words, “In consideration of all the facts presented at trial, this Court’s experience, and the collective experience of the entire Court over the last ten years, the Court finds the appropriate prison sentence for Mr. Chauvin is 270 months.”

This opinion demonstrates Judge Cahill’s careful attention to factual and legal details. The only part that is questionable, in this blogger’s opinion, is his refusal to consider for sentencing his previous conclusion that another aggravating factors was the presence of children. Compare his previous conclusion on this factors with his stated rationale for not considering it for sentencing:

Sentencing conclusion. “Although four young women were present and observed portions of the nine and a half minutes restraint of Mr. Floyd, none was injured or threatened with physical injury so long as they did not interfere; none had been present during the previous police struggle to get Mr. Floyd into a squad car, were free to leave the scene at any time, they did not know any of the officers or Mr. Floyd and at trial did not present any objective indicia of trauma.”
Previous conclusion. “Children were present on the sidewalk adjoining Chicago Avenue standing only a few feet from where . . . [Chauvin] and the other officers were restraining George Floyd prone in the street and observed Mr. Floyd being asphyxiated as he begged for his life.. . . Although these four children did not observe all the events, they did observe a substantial portion of the . . .[Chauvin’s] use of force and witnesses the last moments of Mr. Floyd’s life.”

This sentencing conclusion, in this blogger’s opinion, is weak in light of the trial testimony of then 17-year-old Darnella Frazier: “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,” she said. “I have a Black father, I have Black brothers, I have Black friends. I look at them and how it could have been one of them. It’s been nights I’ve stayed up 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.” Another 17-year-old girl testified at trial, “It was difficult because I felt like there wasn’t really anything I could do. As a bystander I was powerless there, and I was failing to do anything.”

The court’s refusal to consider for sentencing the other aggravating factor of Chauvin’s committing the crime with the assistance of others, however, was justified given the statute’s requirement for sentencing that the others be “offenders,” which has not yet been established with their trial scheduled for this August

Sentencing Hearing[3]

At the June 25 hearing, before the Court imposed the above sentence, the Court heard victim impact statements from members of the Floyd family (seven-year-old daughter Gianna, brothers Terrance and Philonise and nephew Brandon Williams), and Chauvin’s mother (Carolyn Pawlenty).

Derek Chauvin also made the following statement. “At this time due to some additional legal matters at hand, I’m not able to give a full, formal statement at this time. Briefly though, I do want to give my condolences to the Floyd family. There’s going to be some other information in the future that would be of interest, and I hope things will give you some peace of mind. Thank you.” (Emphases added.)

No further information was provided as to what this future information will be, but the only thing this blogger can think of that would be of some comfort to the Floyd family would be an overall agreement among Chauvin and the federal and Minnesota prosecutors for Chauvin to plead guilty to all charges and to abandon any appeal from this guilty verdict and judgment in exchange for an agreed sentence to a federal detention facility.

In addition, at this hearing, Assistant Minnesota Attorney General Matthew Frank and defense attorney Erik Nelson made short statements in support of their requested sentences (30 years by the State and probation and parole by the defense).

At the conclusion of the hearing, Judge Cahill said the sentence was “not based on public opinion. I am not basing it on any attempt to send any messages. The job of a trial judge is to apply the law to specific facts.”

Court’s Order Denying Two Defendant’s Motions[4]

On June 24 (the day before the hearing), the Court denied Chauvin’s motions for a new trial and for a Schwartz hearing to investigate the jury’s conduct during the trial. Those denials followed from the following findings of fact and conclusions of law by the court:

“Defendant has failed to demonstrate that the Court abused its discretion or committed error that Defendant was deprived of his constitutional right to a fair trial.”
“Defendant has failed to demonstrate that the State engaged in prosecutorial misconduct such that Defendant was deprived of his constitutional right to a fair trial.”
“Defendant has failed to establish a prima facie case of juror misconduct or that a juror gave false testimony during voir dire to warrant an evidentiary hearing pursuant to Schwarz v. Minneapolis Suburban Bus Co. . . . [and] State v. Ussee. . . .”

Commentary About the Sentencing[5]

Minnesota Attorney General Keith Ellison. Minnesota Attorney General Keith Ellison in a statement published by the Washington Post said, “Chauvin is one of the few police officers ever convicted of murder for a death on the job. Chauvin’s 22½-year sentence, announced Friday, is one of the longest any police officer in the United States has received in modern times for the death of a civilian.”

“But one exceptional case does not solve the problem. Can this conviction help us finally break the cycle of inaction once and for all?”

“It depends whether we act.”

“Prosecutors must act.”

“Prosecutors must commit to vigorous, visible and swift prosecutions of in-custody deaths when there is probable cause that the use of force was unlawful. They should not be afraid to use all the tools the law puts at their disposal. The visibility of prosecutions, to restore and build credibility with the public, is as important as the vigor employed.”

“The Justice Department must also be a partner in prosecuting cases when local prosecutions fail to win convictions — or fail to act. The Biden administration’s return to conducting investigations into biased policing patterns and practices is also welcome.”

“Prosecutions must also be swift. Chauvin was convicted less than a year after he took Floyd’s life. By contrast, it took four years from the death of Laquan McDonald for Chicago police officer Jason Van Dyke to be convicted. We cannot possibly build public trust if we allow prosecutions to take this long.”

“Lawmakers must act.”

“Congress must pass the strongest version of the George Floyd Justice in Policing Act it can pass. Don’t wait for the perfect bill when a meaningful first step is within reach. Remember: the Voting Rights Act of 1965 and the Fair Housing Act of 1968 were passed after the Civil Rights Act of 1964. Enduring, systemic change takes time.”

“At the state level, legislatures should authorize attorneys general to conduct investigations into local law enforcement to bring to light any persistent patterns of misconduct within a given police department. State-based pattern-or-practice investigations — which critically involve both community members and police officers — have proved successful. If states don’t do that, Congress should make it possible for attorneys general to rely on federal authority to conduct these investigations.”

“City councils and county boards must support reform-minded law enforcement leaders and, if necessary, use the power of the purse to compel reform by directing money toward progressive training and holding leadership accountable for outcomes. We must also recognize that, too often, we ask police officers to solve problems they are neither trained nor intended to solve. We must provide people in crisis with comprehensive social services that law enforcement cannot provide, and we must also support officer wellness.”

“Law enforcement must act.”

“Police leadership must be empowered to take meaningful action. Rather than punishing good officers who call out their colleagues’ bad behavior, as sometimes occurs, police departments should celebrate them and commend their service.”

“The Chauvin trial produced some remarkable, even astonishing, moments, with multiple police officers testifying for the prosecution, and with the police chief, in full uniform, testifying that the defendant’s behavior was not a reasonable use of force in line with department policy. Such testimony should become commonplace, not remain a rarity.”’

“This isn’t about creating a culture of ‘snitching” — it’s about creating a culture of accountability that sets and enforces clear professional standards that protect both police officers and community members.”

“Finally, communities must act.”

“It is imperative that communities keep up the pressure for reform and accountability, and finally end the cycle of inaction. My office could not have led the prosecution of Chauvin without the help of ordinary people who courageously bore witness to Floyd’s death, and the pressure from a community that demanded accountability and action.”

President Joe Biden. At the White House on June 25, President Biden responded to a reporter’s question about the sentencing with this comment: “I don’t know all the circumstances that were considered but it seems to me, under the guidelines, that seems to be appropriate.”

Washington Post Editorial. An editorial in the Washington Post said Chauvin’s conviction and sentencing “should bring a measure of satisfaction that justice was served and assure Americans that the system is not hopelessly broken.”

But more broadly , “Policing in the United States could be more effective and less threatening to minority communities. Officers who commit wrongdoings could face more certain punishments. Floyd’s death last spring appeared to spur a reckoning on U.S. policing, but that momentum has slowed in recent months.”

For example, a bipartisan criminal justice reform bill so far has failed to pass in the U.S. Congress. The House of Representatives in March passed a sweeping police reform bill, but Republican opposition in the Senate appears to doom that bill.

Experts’ Reactions. Although the Chauvin case could lead to better police hiring and training, more trust between police and communities and make the public and future jurors more reception to complaints about police interactions with minorities, this case “ doesn’t address deep-rooted issues of race and violence affecting police interactions with minorities [and does not] . . . result in charges or convictions against officers, according to Sheila A.Bedi, a professor at Northwestern University’s Pritzker School of Law, Director of its Community Justice & Civil Rights Clinic and an attorney in use-of-force lawsuits against the Chicago Police Department.

Another professor of criminal justice, Philip Stinson of Bowling Green State University, pointed out that since 2005 only 11 non-federal law officers, including Chauvin, have been convicted of murder for on-duty conduct, the nine who were sentenced before Chauvin received sentences ranging from six years to life behind bars with the median being 15 years.

Floyd Family Attorney’s Reaction. Ben Crump, the attorney for the Floyd family, called for a federal conviction of Chauvin that might lead to a longer sentence.

Conclusion

We now wait to see the results of any appeal of this conviction and sentencing by Chauvin; the results of the August trial of the other three ex-officers in state court and any subsequent appeals; developments in the federal court criminal cases against the four ex-policemen; and the details of any guilty plea agreements by any or all of the four men.[6]

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[1] Sentencing Order and Memorandum Opinion, State v. Chauvin, Hennepin County District Court, Dist. Ct. , File No. 27-CR-20-12646 (June 25, 2021); Derek Chauvin Trial: Week Seven (Conviction), dwkcommentaries.com (April 21, 2021).

[2] Ibid; Derek Chauvin Trial: Week Four, dwkcommentaries.com (April 2, 2021). Derek Chauvin Trial: Court finds Aggravating Factors for Sentencing, dwkcommentaries.com (May 12, 2021); Derek Chauvin Trial: Arguments About Sentencing of Chauvin, dwkcommentaries.com (June 7, 2021); Derek Chauvin Trial: Issues for Sentencing, dwkcommentaries.com (June 18, 2021);

[3] Olson, Xioing & Walsh, Chauvin Sentenced to 22 ½ years for the murder of George Floyd, StarTribune (June 26, 2021).

[4] State v. Chauvin, Hennepin County District Court, Dist. Ct. File 27-CR-20-12646 (June 24, 2021); AP. Judge rejects Chauvin request for new trial in Floyd death, Wash. Post (June 25, 2021); Xiong, Former officer Derek Chauvin faces sentencing Friday afternoon; judge denies defense motion for new trial, StarTribune (June 25, 2021); Derek Chauvin Trial: Defendant’s Motion for New Trial and Impeachment of Verdict, dwkcommentaries.com (May 5 2021).

[5] Ellison, Opinion: Derek Chauvin is going to prison. Let this be a turning point, Wash. Post (June 26, 2021); Goodnough, Biden calls long prison sentence for Derek Chauvin ‘appropriate,’ N.Y. Times (June 25, 2021); Editorial, Opinion: Derek Chauvin is headed to prison. But that is not enough, Wash. Post (June 25, 2021); Webber (AP), Experts: Impact of Chauvin case on policing yet to be seen, Wash. Post (June 26, 2021); Assoc. Press, Floyd family lawyer calls for federal conviction for Chauvin, Wash. Post (June 25, 2021).

[6] This blog has covered all of the details in these cases and intends to continue doing so. (See List of Posts to dwkcommentaries—Topical: George Floyd Killing.

Derek Chauvin Trial: Arguments About Sentencing of Chauvin

On June 2, the State and Derek Chauvin submitted vastly different briefs about the appropriate sentence for his conviction for second- and third-degree murder and second-degree manslaughter. The State argued for 30 years imprisonment while Chauvin asked for time already served and probation. [1]

The State’s Argument for 30 Year Sentence [2]

The State’s argument for a 30-year sentence was based upon the trial court’s already having decided that there are “beyond a reasonable doubt” four separate aggravating factors in Chauvin’s] killing of George Floyd: () Chauvin “abused a position of trust and authority” as a police officer; (2) he “treated George Floyd “with particular cruelty;” (3) Chauvin “acted in concert with three other .. . [officers], who all actively participated in the creimes;” and (4) children were present when Floyd was pinned to the pavement at 38th and Chicago for more than 9 minutes until he died. (Pp. 1-2.)

In reliance upon Minnesota Supreme Court decisions, the State argued that “each of these factors supplies a “substantial and compelling reason’ for imposing an aggravated sentence” and that “where one or more aggravating factors are present, the district court can impose a sentence up to ‘double the upper limit of the presumptive range.’” This is especially true in this case when the court has concluded that Chauvin’s abuse of his position of trust and authority was “egregious and that multiple aspects of his conduct were ‘particularly cruel.” (Pp. 1-2.)

Here, the “presumptive sentencing range . . . [for Chauvin’s] conviction for . . . second-degree unintentional murder, [which is the most serious of the crimes for which Chauvin was convicted] is 128 to 180 months. The State therefore respectfully request that the court sentence . . . [Chauvin] to 360 months, or 30 years, in prison.” (P. 3.)

In addition, the State took no position “at this time” on the recommendation in the pre-sentence investigation report that Chauvin pay restitution in an amount to be determined by the Court, but reserved the right to address restitution at the sentencing hearing or thereafter. (P. 21, footnote 7.).

Chauvin’s Argument for Mitigated Departure and Sentencing [3]

First, Chauvin argued for a discretionary downward departure and a sentence for a “stringent probationary term.” This departure purportedly was justified by the following alleged facts (pp. 4-10):

Chauvin was 44 years old at the time of his encounter with George Floyd and his having led “a hard-working, law-abiding life . . .[his not having experienced] a legal issue, [his still having] the ability to positively affect his family and his community” and the likelihood as a former police officer of his “becoming a target in prison” by other inmates.
“Chauvin has a criminal history of zero [with] no previous convictions for felony, gross misdemeanor, or misdemeanor offenses.” Moreover, “prior to his conviction, [he] complied with all the terms of the Court’s release orders and made every court appearance.”
”Chauvin has been very respectful of the judicial process, the Court, and the State;” upon learning that a complaint and warrant had been issued for him, he turned himself into custody; [after being released on bail, he] remained out-of-custody, attended all court appearances, was never unruly, was properly dressed for court, and was deferential to the Court under all circumstances.” He thereby “established that he is particularly amenable to probation.”
Before “this incident” occurred, Chauvin was an average man with a loving family and close friends, and he still has such close relationships. “He has the support of his mother, stepfather, father, stepmother, and sister [and his] ex-wife, her family and his former stepchildren.”
Chauvin has demonstrated that he is amenable to probation and will be an asset to the community.

Second, these same alleged facts also support Chauvin’s alternative request for a durational downward departure for his sentence as do the following additional factors (Pp. 10-12):

“Chauvin was unaware that he was even committing a crime.[ Instead,] in his mind, he was simply performing his lawful duty in assisting other officers in the arrest of George Floyd.” Chauvin’s “offense is best described as an error made in good faith reliance [on] his experience as a police officer and the training he had received—not intentional commission of an illegal act.”
Chauvin did not use “a dangerous weapon” and “did not intend to cause George Floyd’s death.”

Third, Chauvin argued that an aggravated upward departure was unwarranted for the following reasons (pp. 12-16):

“There is no evidence that the assault perpetrated by Mr. Chauvin against Mr. Floyd involved a gratuitous infliction of pain or cruelty not usually associated with the commission of such an offense.” This assault “occurred in the course of a very short time, involved no threats or taunting, such as putting a gun to his head and pulling the trigger. . . and ended when EMS finally responded to officers’’ calls.”
The officers twice called for medical assistance and Chauvin remained on scene until it arrived.
“The defense is aware of no caselaw in Minnesota . . in which a peace officer’s position has been considered an aggravating factor for an upward departure in sentencing.”
None of the codefendants has been convicted of a crime related to the crimes of which Chauvin has been convicted.
“The defense is unaware of any case in Minnesota in which the presence of children factor has been considered in a bystander-witness situation where the children, themselves, were not placed in danger.”

Conclusion

The State’s argument for a 30-year sentence was persuasive, given the court’s prior determination that there were four factors favoring upward sentencing departure.

Chauvin’s argument, on the other hand, was ridiculous in claiming the right to probation or downward departure in the length of any sentenced imprisonment, given the trial record and his conviction of all three counts by a jury. Here are some additional reasons for that reaction.

First, Chauvin did not testify at trial, and there were no purported evidentiary bases asserted for his sentencing argument.

Second, many people who were interviewed about Chauvin by the New York Times said Chauvin “did his job as if he were playing a role—a tough Dirty Harry on the lookout for bad guys … [and] seemed to operate at an emotional distance from those around him. [He] was a quiet and rigid workaholic with poor people skills and a tendency to overreact—with intoxicated people especially .” [4]

Third, Chauvin ‘s record as a MPD policeman for 19 years includes 22 complaints that many people believe should have raised alarm in the MPD and triggered a general review.[5]

Fourth, In the state criminal case, in which the jury concluded that Chauvin was guilty of all three charges—second- and third-degree murder and second-degree manslaughter–the prosecution requested court permission for admitting into evidence eight of the previous MPD complaints against Chauvin for his actions as a policeman, and the court granted permission for evidence of one such incident on June 25, 2017 and provisional permission for another on August 25, 2015 if there was “clear and convincing evidence that Chauvin was present when a medical professional made certain remarks.” [6]

Fifth, the previously mentioned June 25, 2017 MPD complaint against Chauvin recently has been asserted in a separate federal grand jury indictment of Chauvin in the Minneapolis federal court. It alleges that in this instance Chauvin deprived a 14-year-old boy of his civil rights by pinning him down, striking him on the head with Chauvin’s flashlight and grabbing him by the throat and hitting him again.[7]

Sixth, another troublesome Chauvin incident that took place only three weeks before the killing of George Floyd was his takedown of another Black man (Adrian Drakeford) in a manner very similar to the takedown of Floyd that was videotaped by the man’s brother. Drakeford was not involved in any suspected crime and was released without charges and without any complaint against Chauvin and his colleagues (J. Alexander Kueng and Thomas Lane). [8]

Seventh, the Floyd family’s complaint in a federal-court civil lawsuit for money damages against the City of Minneapolis, Chauvin (and his three colleagues) alleged that Chauvin was the subject of 17 citizen complaints from 2006 to 2015, that Chauvin as a policeman participated in the shooting and killing of three individuals and in 2005 engaged in a reckless police chase resulting in the deaths of three individuals. On March 12, 2021, in the midst of the state court trial of Chauvin, the City of Minneapolis announced its agreement to settle this case with a payment of $27 million to the Floyd family.[9]

Eighth, only a few days after Mr. Floyd’s death, Chauvin and his then-wife reached an agreement for divorce that would transfer the bulk of his assets to her and thereby presumably protect those assets from any attempt by the Floyd family to seize them to collect a future money judgment against Chauvin. However, a Minnesota state court found that divorce agreement to be fraudulent and that the court subsequently subsequently approved that agreement only after there were major changes. This interpretation of the proposed divorce agreement is also supported by Chauvin’s claim in his sentencing brief that he “is still supported by his ex-wife, her family, and his former stepchildren.”([10]

Ninth, Chauvin and his-then wife in July 2020 were charged with criminal tax fraud by the State of Minnesota for failure to report over $460,000 of Minnesota income since 2014 resulting in illegal failure to pay over $20,000 of Minnesota taxes. [11]

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

[1] Xiong, Chauvin attorney argues for probation instead of prison time for George Floyd murder, StarTribune (June 2, 2021); Forliti (AP), State seeks 30 years for Chauvin; defense want time served, Wash. Post (June 2, 2021).

[2] State’s Memorandum of Law on Sentencing, State v. Chauvin, Hennepin County District Court File No.: 27-CR-20-12646 (June 2, 2021); Derek Chauvin Trial: Court Finds Aggravating Factors for Sentencing, dwkcommentaries.com (May 12, 2021).

[3] Defendant’s Motions for Mitigated Departure and Sentencing Memorandum, State v. Chauvin, Hennepin County District Court File No.: 27-CR-20-12646 (June 2, 2021).

[4] See these posts to dwkcommentaries.com: Ex-Cop Derek Chauvin: An Enigma in Blue (Aug. 9, 2020); Derek Chauvin’s Policing Background (July 20, 2021); Comment: Journalist’s Report on Derek Chauvin’s Prior Instances of Alleged Abuses (Feb. 2, 2021); https://dwkcommentaries.com/2020/07/20/derek-chauvins-policing-background/Comment: Video of Another Chauvin-Led Takedown of Black Man (Feb. 9, 2021).

[5] See n. 4.

[6] See these posts to dwkcommentaries.com: Evidentiary Rulings and Request for Delay in Chauvin’s Expert Report in George Floyd Criminal Cases (Jan. 26, 2021); Comment: Journalist’s Report on Derek Chauvin’s Prior Incidents of Alleged Abuses (Feb. 2, 2021).

[7] Federal Court Charges Against Ex-Minneapolis Policemen Over George Floyd’s Killing, dwkcommentaries.com (May 7, 2021).

[8] Comment: Video of Another Chauvin-Led Takedown of Black Man, dwkcommentaries.com (Feb. 3, 2021).

[9] See thees posts to dwkcommentaries.com: George Floyd Family’s Complaint Against the Four Ex-Police Officers Over His Death, (July 17, 2020); Derek Chauvin Trial: Week One, (Mar. 15, 2021); Derek Chauvin Trial: Week Two, (Mar. 21, 2021).

[10] See these posts to dwkcommentaries.com: Derek Chauvin’s Wife’s Divorce Petition Raises Questions, (July 8, 2020); State Court Rejects Chauvin Divorce Settlement,(Nov. 20, 2020); Complications in Derek Chauvin’s Divorce Case,(January 20, 2021); Comment: Court Approves Redacted Chauvin Divorce Agreement, (Feb. 4, 2021)

[11] Chauvin and Wife Now Charged with Minnesota Tax Crimes, dwkcommentaries.com (July 22, 2020).

Department of Justice Starts Investigation of Minneapolis Police Department

On April 21 (the day after the Chauvin guilty verdict), U.S. Attorney General Merrick B. Garland announced that “the Justice Department has opened a pattern or practice investigation into the City of Minneapolis (the City) and the Minneapolis Police Department [MPD].”[1]

The Investigation Announcement

“The investigation will assess all types of force used by MPD officers, including uses of force involving individuals with behavioral health disabilities and uses of force against individuals engaged in activities protected by the First Amendment. The investigation will also assess whether MPD engages in discriminatory policing. As part of the investigation the Justice Department will conduct a comprehensive review of MPD policies, training and supervision. The department will also examine MPD’s systems of accountability, including complaint intake, investigation, review, disposition and discipline. The Department of Justice will also reach out to community groups and members of the public to learn about their experiences with MPD.”

According to the Attorney General, this investigation “will assess whether the [MPD] engages in a pattern or practice of using excessive force, including during protests. Building trust between community and law enforcement will take time and effort by all of us, but we undertake this task with determination and urgency, knowing that change cannot wait.”

“Like so many of you, I have closely watched the events in Minnesota. Although the state’s prosecution was successful, I know that nothing can fill the void that the loved ones of George Floyd have felt since his death. My heart goes out to them and to all those who have experienced similar loss.”

“I know such wounds have deep roots, and that too many communities have experienced those wounds firsthand. Yesterday’s verdict in the state criminal trial does not address potentially systemic policing issues in Minneapolis.”

“The Justice Department also has the authority to bring a civil lawsuit, asking a federal court to provide injunctive relief that orders the MPD to change its policies and practices to avoid further violations.”

“Most of our nation’s law enforcement officers do their difficult jobs honorably and lawfully.”

“I strongly believe that good officers do not want to work in systems that allow bad practices. Good officers welcome accountability because accountability is an essential part of building trust with the community, and public safety requires public trust.”

“I have been involved in the legal system, in one way or another, for most of my adult life. I know that justice is sometimes slow, sometimes elusive, and sometimes never comes. The Department of Justice will be unwavering in its pursuit of equal justice under law.”

“The challenges we face are deeply woven into our history – they did not arise today or last year”

“Building trust between the community and law enforcement will take time and effort by all of us, but we undertake this task with determination and urgency, knowing that change cannot wait.”

Reactions [2]

Principal Deputy Assistant Attorney General Pamela S. Karlan, for the Department’s Civil Rights Division, said, “One of the Civil Rights Division’s highest priorities is to ensure that every person in this country benefits from public safety systems that are lawful, responsive, transparent and nondiscriminatory,” said “It is essential that police departments across the country use their law enforcement authority, including the authority to use force, in a manner that respects civil rights and the sanctity of human life.”

According to W. Anders Folk, the Acting U.S. Attorney for the District of Minnesota, “People throughout the city of Minneapolis want a public safety system that protects and serves all members of our community. This investigation by the Department of Justice provides a vital step to restore and build trust in the [MPD} and its officers.”

The New York Times pointed out that the Department would issue a public report at the conclusion of the investigation. It also has the option to bring a civil suit against the MPD and enter into a settlement agreement, or consent decree, to ensure that prompt and effective action is taken to bring the department’s practices into compliance with the law.

More immediately, this investigation was welcomed in a StarTribune editorial and by Minneapolis Mayor Jacob Frey, Minneapolis Police Chief Arradondo and 12 of the 13 Minneapolis City Council members.

The StarTribune editorial said this investigation “is a welcome development in a city where mayors and police chiefs alike have struggled for years to effectively reform the department.” It also noted that “MPD officers are seldom disciplined for their actions, well-protected by a powerful union. Chauvin had at least 16 prior complaints against him, only two of which drew reprimands. A recent Star Tribune analysis shows that for the department as a whole, only about 3% of misconduct complaints resulted in discipline.”

The Mayor said the City must seize on this “generational opportunity” to improve life for the Black community. Similar sentiments were voiced by Chief Arradondo, who pledged to “cooperate fully” with the investigation while saying , “The Chief has been insistent that he wants to make the MPD the best department possible.”

The 12 Council members stated they “fully support [this investigation in holding accountable] any and all abuses of power and harms to our community and stand ready to aid in this process as full partners.” They also said, “The City Council’s oversight of the Minnea[polis Police Department has been historically constrained by the City Charter and state law and we welcome new tools to pursue transformational, structural changes to how the City provides for public safety.”

Minnesota’s two U.S. Senators, Amy Klobuchar and Tina Smith, issued a joint statement reminding everyone that they previously had “called for the Department of Justice to conduct an investigation into the patterns and practices of racially discriminatory policing in Minneapolis. We commend the Department of Justice’s decision to open this investigation, and we encourage them to coordinate with the ongoing investigation by the Minnesota Department of Human Rights. Through both of these efforts, we are hopeful to make meaningful progress. These investigations alone will not solve systemic issues, which is why we won’t stop fighting to pass police reform legislation to hold officers accountable for misconduct, increase transparency in policing practices, and ban dangerous police practices like chokeholds and no-knock warrants.”

Several activist groups had mixed responses:

Black Visions said, “The police investigating themselves will never result in needed changes to truly provide public safety to the people of Minneapolis and greater Minnesota. The MPD has shown the public and community time and time again that they do not care about the safety of Black people or the larger community.”
Reclaim the Block said, “Minneapolis’ violent and murderous police department is built on the Obama Justice Department model of 21^st century policing. We don’t expect real change to come out of the DOJ.”
Communities United Against Police Brutality said, “ We have been asking for DOJ assistance—since at least 2001. We have a toxic culture of police in this state, and not just in one department.”

Jared Fishman, a former federal civil rights prosecutor, called the announcement “hugely significant” and said it could signal that the Justice Department would once again use its considerable legal muscle to try to force police reforms. The Obama administration had opened 25 investigations into local law enforcement agencies and enforced 14 court-approved consent decrees mandating changes. Yet Fishman cautioned that the efficacy of such settlements can sometimes be stymied because local departments or prosecutors’ offices lack the resources or expertise to make the changes federal officials recommend.Fishman also noted that last week Attorney General Garland had rescinded a 2018 order by then Attorney General Jeff Sessions that aimed to drastically limit the use of such settlement agreements with local police agencies.

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

[1] Attorney General Merrick B. Garland Delivers Remarks at Announcement of Pattern or Practice Investigation into the Minneapolis Police Department (April 21, 2021); U.S. Dep’t Justice, PRESS RELEASE: Attorney General Merrick B. Garland Announces Investigation of the City of Minneapolis, Minnesota, and the Minneapolis Police Department (April 21, 2021); Benner, Attorney general Merrick Garland announces an investigation into the Minneapolis Police Department, N.Y. Times (April 21, 2021); Nakamura, Berman & Zapotonsky, Garland announces Justice Dept. probe into Minneapolis police, Walsh. Post (April 21, 2021), [2] See note 1 supra. See also Editorial, Justice Department probe is a critical next step, StarTribune (April 21, 2021); Press Release: Klobuchar, Smith Statement on Department of Justice Investigation into Minneapolis Police Practices (April 21, 2021); Mannix, Justice Department to probe whether Minneapolis police have ‘pattern and practice’ of misconduct, StarTribune (April 22, 2021), ; Nakamura, Merrick Garland rolls back Trump-era restriction on forcing local police reforms, Wash. Post (April 16, 2021); Condon & Woodall, Advocates fear Minnesota, federal police reform efforts could lose momentum, StarTribune (April 22, 2021).

It should also be noted that shortly after the killing of George Floyd, the City of Minneapolis and the Minnesota Department of Human Rights entered into an agreement banning choke holds and neck restraints by the MPD. (See these posts to dwkcommentaries.com: Ban on Police Choke Holds and Neck Restraints in Agreement between City of Minneapolis and Minnesota Department of Human Rights (June 6, 2020); Court Approves Agreement on Police Conduct Between City of Minneapolis and Minnesota Department of Human Rights (June 9, 2020).

Derek Chauvin Trial: Week Seven (CONVICTION)

On Tuesday (April 20), the jury in Minnesota’s Hennepin County District Court returned its verdict in the Derek Chauvin criminal case: Guilty on all three counts (second degree murder, third-degree murder and second-degree manslaughter)! They did so after only about six hours of deliberation.

In the courtroom, Chauvin’s bail immediately was revoked, and he was handcuffed and taken for his safety to administrative segregation (solitary confinement) at Oak Park Heights Prison until sentencing in June.

This verdict was hailed by individuals and groups around the U.S., including President Biden and former President Barack Obama.

Further details are provided in many newspaper articles., some of which are listed below.{1}

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

[1] Forliti, Karnowski & Webber (AP), Jury’s swift verdict for Chauvin in Floyd death: Guilty, StarTribune (April 21, 2021); https://www.startribune.com/jurys-swift-verdict-for-chauvin-in-floyd-death-guilty/600048350; Xiong & Walsh, Derek Chauvin, convicted of murdering George Floyd in Minneapolis, is led away in handcuffs, StarTribune (April 21, 2021), https://www.startribune.com/derek-chauvin-convicted-of-murdering-george-floyd-in-minneapolis-is-led-away-in-handcuffs/600048324; Arango, Dewan, Eligon & Bogel-Burroughs, Derek Chauvin is found guilty of murdering George Floyd, N.Y. Times (April 20, 2021); https://www.nytimes.com/2021/04/20/us/chauvin-guilty-murder-george-floyd.html?searchResultPosition=7; Walsh, Derek Chauvin is segregated from other inmates in state’s ‘most secure unit,’ StarTribune (April 21, 2021). https://www.startribune.com/derek-chauvin-is-segregated-from-other-inmates-in-state-s-most-secure-unit/600048467/. The elements of these three crimes are set forth in the court’s instructions to the jury. (Derek Chauvin Trial: Week Seven (Jury Instructions), dwkcommentaries.com (April 20, 2021), https://dwkcommentaries.com/2021/04/20/derek-chauvin-trial-week-seven-submission-to-jury.

Derek Chauvin Trial: Week Seven (Jury Instructions)

On Monday (April 19), Judge Cahill delivered instructions on the law to the jury, as discussed below. Then attorneys for the prosecution and Chauvin gave their closing arguments, which will be discussed in a subsequent post, while we and millions of people await the jury’s verdict.

The Jury Instructions are contained in a 14-page document: single-spaced (with extra space between paragraphs and headings). The following contains the headings with occasional portions of the actual text and without the details on subjects in brackets and without the instructions after the closing arguments of the parties.[1]

[Duties of Judge and Jury]

[Instructions To Be Considered as a Whole]

[Presumption of Innocence]

Proof Beyond a Reasonable Doubt

Proof beyond a reasonable doubt is such proof as ordinarily prudent men and women would act upon in their most important affairs. A reasonable doubt is a doubt based upon reason and common sense. It does not mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt

[Direct and Circumstantial Evidence]

[Statements of Judge and Attorneys]

[Multiple Charges to be Considered Separately]

[Definitions of Words and Phrases]

COUNT I

The defendant is charged in Count I with Murder in the Second Degree in connection with the death of George Floyd.

Definition

Under Minnesota law, a person causing the death of another person, without intent to cause the death of any person, while committing or attempting to commit a felony offense is guilty of the crime of Murder in the Second Degree. (Emphasis added.)

Elements

The elements of the crime of Murder in the Second Degree while committing a felony are:

First Element: The death of George Floyd must be proven.

Second Element: The Defendant caused the death of George Floyd. (Emphasis in original.)

Third Element: The Defendant, at the time of causing the death of George Floyd, was committing or attempting to commit the felony offense of Assault in the Third Degree. It is not necessary for the State to prove the Defendant has an intent to kill George Floyd, but it must prove that the Defendant committed or attempted to commit the underlying felony of Assault in the Third Degree. (Emphases in original.)

There are two elements of Assault in the Third Degree:

(1) Defendant assaulted George Floyd.

“Assault “ is the intentional infliction of bodily harm upon another or the attempt to inflict bodily harm upon another. The intentional infliction of bodily harm requires proof that the Defendant intentionally applied unlawful force to another person without that person’s consent and that this act resulted in bodily harm. (Emphases in original.)

Defendant inflicted substantial bodily harm upon George Floyd. It is not necessary for the State to prove that the Defendant intended to inflict substantial bodily harm, or knew that his actions would inflict substantial bodily harm, only that the Defendant intended to commit the assault and that George Floyd sustained substantial bodily harm as a result of the assault. (Emphases in original.)

Fourth Element:. The Defendant’s act took place on or about May 25, 2020 in Hennepin County.

If you find that each of these elements has been proved beyond a reasonable doubt, the Defendant is guilty of this charge. If you find that any of these elements has not been proven beyond a reasonable doubt, the Defendant is not guilty of this charge, unless you find that the Defendant is liable for this crime committed by another person or persons according to the instruction below on page 8 under the heading ”Liability for Crimes of Another.”

Count II

The Defendant is charged in Count II with Murder in the Third Degree in connection with the death of George Floyd.

Definition

Under Minnesota law, a person causing the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, but without intent to cause the death of any person, is guilty of Murder in the Third Degree. (Emphasis added.)

Elements

The elements of the crime of Murder in the Third Degree are:

First Element: The death of George Floyd must be proven.

Second Element: The Defendant caused the death of George Floyd. (Emphasis in original.)

Third Element: The defendant caused the death of George Floyd by an intentional act that was eminently dangerous to other persons. A person commits an act eminently dangerous to others when the act is highly likely to cause death.(Emphases in original.)

Fourth Element: Defendant acted with a mental state consisting of reckless disregard for human life. The Defendant’s act may not have been specifically intended to cause death, and may not have been specifically directed at the particular person whose death occurred, but it must have been committed with a conscious indifference to the loss of life that the eminently dangerous act could cause. (Emphases in original.)

Fifth Element: The Defendant’s act took place on or about May 25, 2020 in Hennepin County.

If you find that each of these elements has been proven beyond a reasonable doubt, the defendant is guilty of this charge. If you find that any of these elements has not been proven beyond a reasonable doubt, the Defendant is not guilty of this charge, unless you find that the State has proven beyond a reasonable doubt that the Defendant is liable for this crime committed by another person or persons according to the instruction below on page 8 under the heading “Liability for Crimes of Another.”

COUNT III

The Defendant is charged in Count III with Manslaughter in the Second Degree in connection with the death of George Floyd.

Definition

Under Minnesota law, whoever, by culpable negligence, whereby he creates an unreasonable risk and consciously takes the chance of causing death or great bodily harm to another person, causes the death of another is guilty of Manslaughter in the Second Degree.

The Defendant is charged with committing this crime or intentionally aiding the commission of this crime.

Elements

The elements of Manslaughter in the Second Degree are:

First Element: The death of George Floyd must be proven.

Second Element: The Defendant caused the death of George Floyd, by culpable negligence, whereby the Defendant created an unreasonable risk and consciously took a change of Causing death or great bodily harm. “Culpable negligence” is intentional conduct that the Defendant may not have intended to be harmful but that an ordinary and reasonable prudent person would recognize as involving a strong probability of injury to others. (Emphases in original.)

Third Element: The Defendant’s act took place on or about May 25, 2020 in Hennepin County.

[LIABILITY FOR CRIMES OF ANOTHER]

Defense: Authorized Use of Force by a Police Officer

No crime is committed if a police officer’s actions were justified by the police officer’s use of reasonable force in the line of duty in effecting a lawful arrest or preventing an escape from custody. (Emphases in original.)

The kind and degree of force a police officer may lawfully use in executing his duties is limited by what a reasonable police officer in the same situation would believe to be necessary. Any use of force beyond that is not reasonable. To determine if the actions of the police officer were reasonable, you must look at those facts which a reasonable officer in the same situation would have known at the precise moment the officer acted with force. You must decide whether the officer’s actions were objectively reasonable in light of the totality of the facts and circumstances confronting the officer and without regard to the officer’s own subjective state of mind, intentions, or motivations. (Emphases in original.)

The Defendant is not guilty of a crime if he used force as authorized by law.

To prove guilt, the State must prove beyond a reasonable doubt that the Defendant’s use of force was not authorized by law.

[Evaluation of Testimony—Believability of Witnesses]

[Expert Testimony]

Defendant’s Right Not to Testify

The State must convince you by evidence beyond a reasonable doubt that the Defendant is guilty of the crime charged. The Defendant has no obligation to prove his innocence. The Defendant has the right not to testify. This right is guaranteed by the federal and state constitutions. You should not draw any inference from the fact that the Defendant has not testified in this case.

[Impeachment]

Evidence of Other Occurrences Involving George Floyd

You have heard evidence of an occurrence involving George Floyd on May 6, 2019. As I told you at the time this evidence was offered, it was admitted solely for the limited purpose of showing what effects the ingestion of opioids may or may not have had on the physical wellbeing of George Floyd. this evidence is not to be used as evidence of the character of George Floyd.

[Demonstrative Evidence]

[Definition of Words]

[Rulings on Objections to Evidence]

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

[1] District Court, Jury Instructions, https://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12646/JuryInstructions04192021.pdf; Read the judge’s instructions to the jury in the Derek Chauvin murder trial, StarTribune (April 19, 2021); https://www.startribune.com/read-the-judges-instructions-for-the-jury-in-the-derek-chauvin-murder-trial/600047788; Read: Judge’s instructions to Derek Chauvin trial jurors, Wash. Post (April 19, 2021), https://www.washingtonpost.com/context/read-judge-s-instructions-to-derek-chauvin-trial-jurors/5b3517cb-bfa2-4dad-957e-11acfb2783f2/.

Derek Chauvin Trial: Week Six (Defense Case)

Tuesday (April 13) of Week Six turned to the presentation of the defense’s case, after the testimony of the prosecution’s final three witnesses on April 12. [1] The defense then called seven witnesses on Wednesday (April 14) while Thursday (April 15) saw the end of the evidentiary phase of the trial. First, however, we will examine rulings and comments by Judge Cahill.

Judge Cahill’s Rulings and Comments[2]

Wednesday’s trial started with the Judge granting a motion by Morris L. Hall, to quash a defense subpoena for him to testify in the trial on the ground that such testimony would infringe his Fifth Amendment privilege against self-incrimination. The Judge said, “I’m finding that he has a complete Fifth Amendment privilege.”

The Judge then denied the defense’s motion for an acquittal on the grounds that the State allegedly had failed to prove whether there was a use of force and whether any such force was unreasonable and caused Floyd’s death.

The Judge ordered the jury to consider the testimony of two defense witnesses (Creighton and Moseng on what impact “the ingestion of opioids may or may not have on the physical well-being of George Floyd, not on his character.”

At the end of Tuesday’s proceedings, the Judge told the jury that the defense was expected to finish its case by this Thursday, that the Court probably would not be in session this Friday and that closing arguments probably would happen next Monday after which the jury would be sequestered for their deliberations. “So next Monday pack a bag and bring it to court.”

Defense Witnesses [3]

1. Scott Creighton( (Retired MPD officer). He was involved in a May 2019 traffic stop of George Floyd in Minneapolis and testified, with the aid of his body cam video, that Floyd “was unresponsive and noncompliant to my commands [to show his hands] in the car he was driving. Creighton, therefore, pointed his gun at Floyd and “reached [into the car] to grab his hand and put it up on the dash.” In response, Floyd said, ”Don’t shoot me man.” Then “that individual [Floyd] was taken from the vehicle and handcuffed. In my mind, his behavior was very nervous and anxious.”

On cross-examination, Creighton admitted that he had given conflicting commands on where Floyd should put his hands in the car and that after Floyd was out of the car he was coherent and cooperative. It also should be noted that Floyd was not charged with any crime on that occasion.

2. Michelle Moseng (retired Hennepin County Medical Center (HCMC) paramedic). At the time of the May 2019 encounter, she tended to Floyd in the Police Department’s Fourth Precinct in north Minneapolis. He had “extremely high” blood pressure, and he said he “has a history of hypertension and hadn’t been taking his medication,” but that day had been taking multiple opioid pills every 20 minutes because he was addicted. She wanted him to go to a hospital because she thought he was at risk of a stroke, but he refused.

Under cross examination by the prosecution, she admitted that Floyd “was alert, obeying commands and his respiration and pulse rates were normal.” Nor did he have a stroke or stop breathing while he was with her.

3. Shawanda Hill (a young Black woman). On the morning of May 25, 2020, at Cup Foods she happened to run into George Floyd, an acquaintance, who appeared to be normal, talking and alert. He offered her a ride home in his car, but soon after they were in his car, ”he fell asleep.”

When Cup Foods employees came to the car to ask about the $20 bill Floyd had used in the store, “they were trying to wake him up over and over, but Floyd just said something, made a little gesture and nodded back off.” Floyd told her “he was tired because he had been working.”

Later a police officer arrived at the car with a drawn gun and demanded that Floyd put his hands on the dash. She woke up Floyd and told him, “Baby, that’s the police. It’s about the $20 bill that wasn’t real. Roll down the window.” Floyd immediately rolled down the window, grabbed the steering wheel and said, “Please, please don’t shoot me.” Floyd appeared to be “very” startled, but she saw nothing to indicate he was having any health problems such as shortness of breath or chest pains.

4. Peter Chang (Minneapolis Park Police officer). On May 25, 2020, he was stationed at a nearby park, but came to the scene in response to a call for assistance. He then commented on portions of his bodycam video. When he arrived, Floyd was handcuffed and sitting on the sidewalk [next to the brick wall of an Asian restaurant across 38th Street from Cup Foods.]

At the request of one of the four officers already at the scene, Chang used his squad car computer to find information about Floyd. Chang stayed by Floyd’s car and talked with two people who had been in the car, the previously mentioned Shawanda Hill and Morris Hall. As they watched what was happening across the street, Hall said, “Something’s going on. They’re taking pictures over there. Everybody’s recording this shit, man.”

When the ambulance arrived at the scene, Hall said, “Can I just see what y’all did to him? He on the ground and everything? Oh my God.” One of the bystanders, Mr. McMillian, came across the street to see these two Black people and told them they needed to call Floyd’s family.

Under cross examination, Chang said his focus remained on Floyd’s car and the two Black people there because he assumed the four officers (Chauvin and the other three) were OK.They had never radioed for help.

5. Nicole Mackenzie (MPD Medical Support Coordinator). She testified about “excited delirium,” a syndrome in dispute among health professionals, but taught to MPD police cadets. She said that the MPD training asserts that this syndrome leads to psychotic behavior , agitation, incoherent speech, superhuman strength and hyperthermia. Cadets are trained to have an ambulance at a safe distance in such situations because a suspect “can rapidly go into cardiac arrest.”

She also testified that the MPD training on “excited delirium” emphasizes putting the suspect in the side recover position and rendering CPR assistance. Judge Cahill, however, told the jury there was no evidence that Chauvin had had this training and, therefore, this testimony was not relevant to his state-of-mind on May 25, 2020. [4]

6. Barry Brodd (Retired police officer and use-of-force expert). He testified for the defense, “I felt that Derek Chauvin was justified and acting with objective reasonableness following Minneapolis Police Department policy and current standards of law enforcement in his interactions with Mr. Floyd.”

When asked about his opinion, Brodd brought up a scenario he taught at the academy referring to a domestic violence incident where an individual is Tased, falls to ground and strikes his head. That’s not deadly force, that’s an accidental death, Brodd contended.

Brodd, who for served 22 years in the Santa Rosa Police Department before his retirement in 2004, said it’s important for anyone “to try to see it as the officer on the scene … then try to put yourself in the officer’s shoes. It’s easy to sit in an office and judge an officer’s conduct.”

Brodd testified that police used force in attempting to get Floyd in the squad and getting him to the ground, but once Floyd was on the ground, Brodd said he didn’t believe the “prone control” position was use of force.

Brodd also said police officers must always keep their head on a swivel and engage in “one upsmanship,” meaning officers do not always have to fight fair. “They’re allowed to overcome your resistance by going up a level to gain control.”

He asserted that the prone position was not dangerous and unlikely to cause “pain” for restrained suspects. With respect to Floyd, “there were space limitations; Mr. Floyd was butted up against the tire of the patrol car. There was traffic still driving down the street. There were crowd issues that took the attention of the officers. Mr. Floyd was still somewhat resisting. I think there were valid reasons to keep him in the prone.

Brodd also claimed that the prone position could be viewed as “safer” for suspects potentially on drugs because it was a method of control should someone suddenly exhibit “erratic behavior going from compliant to noncompliant, not feeling any pain, potentially having superhuman strength.”

7. Dr. David Fowler (Former Maryland Chief Medical Examiner and use-of-force expert). In his opinion, Floyd died of a cardiac arrhythmia due to heart disease with contributing factors, including fentanyl. He also said, in his opinion, that Chauvin’s knee did not impact the vital structures of Floyd’s neck, that there was no research evidence suggesting that the prone position is an issue in restricting air and that carbon monoxide poisoning from the police car may have contributed to his death. Other factors Fowler mentioned were Floyd’s high blood pressure (216/160) which “could be due to his hypertension being out of control, his exposure to vehicle exhaust from the adjacent patrol car, his tumors near the carotid artery and nerve pathways. As a result, he would have classified the cause of death as undetermined due to these multiple factors.

On cross examination, Fowler admitted that there were no data showing Floyd had any injury from carbon monoxide and no evidence the squad car was running, that he did not identify the time of death, that Floyd showed no signs of overdoses such as sleepiness, that 90 percent of tumors called paraganglioma do not secret adrenaline (contrary to his direct testimony), that Fowler was not claiming that Floyd died from such tumors and that he had never said the white object observable in Floyd’s mouth was a pill of any kind.

On cross examination, Dr. Fowler also admitted he erroneously had claimed that another medical expert who had criticized holding someone in a prone position had reversed that position.

Fowler also agreed that Chauvin and the other three officers were negligent in failing to provide immediate lifesaving measures to Floyd once he lacked a pulse. at roughly five of the over nine minutes he was restrained, and Fowler is critical of that failure by the officers.

Closing of Defense Case [5]

On Thursday (April 15), outside the presence of the jury, Mr. Chauvin announced that he invokes his Fifth Amendment right not to testify and then responded to questions about that decision from his attorney, Erik Nelson: the two of them have had many conversations about whether he would testify, including as recently as the prior night; that Chauvin testified, the state would have broad latitude in its cross examination; and that he understood that any decision to testify was his alone and neither the state nor the court can equate silence with guilt. Judge Cahill then asked whether this was his decision, and he said, “It is, your Honor.”

The Judge also said, “If he [Tobin] even hints at test results the jury has not heard about, it’s gonna be a mistrial, pure and simple.”

The defense then rested on their case in chief.

Prosecution’s Rebuttal [6]

Jerry Blackwell for the prosecution told the court he intended to recall Dr.Tobin to testify about the “very small” carbon monoxide levels in Mr. Floyd’s blood, an issue made relevant by the testimony of the defense expert, Dr. Fowler. Defense counsel, Erik Nelson, however, objected to this new evidence in rebuttal.

Judge Cahill agreed with this objection because he claimed the prosecution months ago knew that Dr. Fowler would testify about carbon monoxide and allowing such evidence in rebuttal would prejudice the defense because Dr.Fowler already had left Minnesota . However, the judge said that Dr. Tobin could testify about how carbon monoxide could have affected Floyd, but could not mention the actual amount of that chemical in his blood. The Judge also said, “If he [Tobin] even hints at test results the jury has not heard about, it’s gonna be a mistrial, pure and simple.”

The prosecution then called Dr. Tobin for brief testimony within those constraints.

Then the prosecution rested its case.

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

[1] See Derek Chauvin Trial: Week Six (Ending of Prosecution Case), dwkcommentaries.com (April 13, 2021).

[2] Walsh, The state rests.’ Now the defense starts its case in the Derek Chauvin murder trial, StarTribune (April 13, 2021); Walsh, ‘Baby, that’s the police:’ Woman in SUV with George Floyd testifies she woke him up when cop was at window with gun drawn, StarTribune (April 13, 2021); Walsh, Simons & Sayle, What happened Tuesday in the Derek Chauvin trial, StarTribune (April 13, 2021); Walsh, Defense expert says Derek Chauvin ‘was justified’ in his actions before George Floyd died, StarTribune (April 13, 2021); Bailey, Derek Chauvin’s defense opens with focus on George Floyd’s drug use, rebuttal testimony on use of force, Wash. Post (April 13, 2021); Xiong, Walsh & Olson, Derek Chauvin’s actions were justified and reasonable, defense expert testifies, StarTribune (April 14, 2021): Walsh, Defense will resume today arguing that Derek Chauvin did not kill George Floyd, Star Tribune (April 14, 2021); Forliti, Karnowski & Webber(AP), Judge refuses request to acquit Chauvin in Floyd’s death, Wash. Post (April 14, 2021); Karnowski & Tarm, EXPLAINER: Reluctant witness won’t testify in Chauvin trial, Wash. Post (April 14, 2021); Bella & Iati, Live Updates: At Chauvin’s trial, defense’s medical expert says officer’s kneeling on George Floyd’s neck did not injure him, Wash. Post (April 14, 2021); Walsh, Defense witness: Due to multiple factors, manner of George Floyd’s death ‘undetermined,’ StarTribune (April 14, 2021); Bella, Iati, Kornfield & Knowles, Live updates: At Chauvin’s trial, defense medical expert say’s officer’s kneeling on George Floyd’s neck did not injure him, Wash. Post (April 14, 2021); Walsh, Simons & Sayle, What happened Wednesday in the Derek Chauvin trial, StarTribune (April 14, 2021; .Xioong, Walsh & Olson, Cardiac arrest and drugs, not lack of oxygen, caused Floyd’s death, defense expert says, StarTribune (April 15, 2021).

[3] See fn. 2 supra.

[4] Mackenzie previously had testified for the prosecution. See Derek Chauvin Trial: Week Five, dwkcommentaries.com (April 10, 2021).

[5] Walsh, Derek Chauvin tells court he will not testify in his murder trial, StarTribune (April 15, 2021); Belia & Bellware, Chauvin declines to testify, invoking his Fifth Amendment right as defense rests its case, Wash. Post (April 15, 2021); Walsh, Simons & Sayle, What happened Thursday in the Derek Chauvin trial, StarTribune (April 15, 2021); Tompkins, Derek Chauvin declines to testify, N.Y. Times (April 15, 2021).

[7] See fn. 6 supra.

[8] Belia, Derek Chauvin tells court he will not testify in his murder trial, Wash. Post (April 15, 2021); Beila, Coroner who performed Floyd’s autopsy called to dispute defense expert’s carbon monoxide claim, prosecutor says, Wash. Post (April 15, 2021); Walsh, Derek Chauvin tells court he will not testify at his murder trial, StarTribune (April 15, 2021);Tompkins, Derek Chauvin declines to testify, N.Y. Times (April 15, 2021).

Derek Chauvin Trail: Week Six (Ending of Prosecution Case)

The testimony of the prosecution’s final three witnesses and Judge Cahill’s rulings on several issues occupied the first day (April 12) of the trial’s Week Six.[1] This was after Week Four’s opening statements and testimony from 19 prosecution witnesses and Week Five’s 16 prosecution witnesses. [2] Thereafter the defense started presentation of its case, which will be discussed in a subsequent post.

Prosecution Witnesses [3]

36. Dr. Jonathan Rich (Associate Professor, Northwestern Memorial Hospital, Chicago and Cardiology Expert). He testified that in his opinion, “Floyd’s cause of death was cardiopulmonary arrest caused by low oxygen levels that “were induced by the prone restraint and positional asphyxia” from the officers’ restraint. The low oxygen sent him into cardiopulmonary arrest “much more slowly and gradually . . . . His speech [was] starting to become less forceful . . . until his speech became absent and his muscle movements were absent.”

Moreover, Dr. Rich testified, “I believe that Mr. George Floyd’s death was absolutely preventable.” He also pointed out the following moments when Floyd’s death could have been prevented: (1) when one of the officers said, “I think he is passing out;” (2) when one of the officers twice suggested that Floyd be turned over; and (3) when one of the officers said Floyd no longer had a pulse. Chauvin rejected all of those suggestions, but if they had been accepted, Floyd could have been released from the restraint and CPR started.

Dr. Rich also testified, “I can state with a high degree of medical certainty that George Floyd did not die from a primary cardiac event and he did not die from a drug overdose.”

37. Philonise Floyd (George Floyd’s brother). He talked about how the two of them played video games and basketball together as children. When he looked at a photo of George as a toddler sleeping in the arms of their mother, the brother began to cry while saying he was “a big mama’s boy.” Their mother died in 2018, and at her funeral, George sat at the coffin saying “Mom, Mom” over and over.

George was a talented athlete, marking his height on the wall, wanting to be taller to have an edge in sports. “He always wanted to be the best.He was excellent in football and basketball and won a scholarship to attend college in Florida. George made snacks for his younger siblings although he couldn’t cook. He was a person everyone loved. He just knew how to make people feel better.”

This testimony was permissible under a 1985 Minnesota Supreme Court decision allowing prosecutors to present evidence that a murder victim was “not just bones and sinews covered with flesh, but was imbued with the spark of life.”

The defense did not cross-examine Philonise.

38. Seth W. Stoughton (University of South Carolina Schol of Law; use-of-force expert). He said that the officers severely mishandled the arrest of Mr. Floyd at nearly every level. The prone position is meant to be a temporary position, typically used to apply handcuffs to a suspect, not the nine and a half minutes used on Floyd. The dangers of the prone position—making it more difficult for a suspect to breathe, particularly with extra weight on their back or neck—“have been well known in policing for decades.”

Stoughton concluded that “no reasonable officer would have believed that [kneeling on the prone body of Mr. Floyd] was an appropriate, acceptable or reasonable use of force;” that “there’s no specific and articulable facts that . . . a reasonable officer in the defendant’s position, could use to conclude that [Floyd] had the intention of causing physical harm to the officers or others;”and that “a reasonable officer would not have viewed the bystanders as a threat.”

Judge Cahill’s Rulings

At the start of the hearing, defense counsel Erik Nelson asked the court immediately to sequester the jurors and ask them whether they had learned about the civil unrest in Brooklyn Center in response to the police killing of a black man in that city and to order the jurors to avoid all news media. Prosecution counsel opposed both requests and Judge Cahill immediately denied same.

Also at the start of the hearing Mr. Nelson asked the court to deny the prosecution’s calling another witness (Dr.Stoughton) about Chauvin’s use of force, especially with another showing of the full video of Floyd’s restraint. After the prosecution said it would not be showing this witness the entire video, Judge Cahill ruled that Dr. Stoughton may testify, but only about national use of force standards and about the impact of bystanders on Chauvin’s actions.

Another issue raised before testimony was whether the defense may call Morries L. Hall, but that issue has not yet been resolved.

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

[1] This summary of Week Six is based upon watching some of the livestreaming of the trial and the following reports: Walsh, 3^rd Week of testimony in Derek Chauvin trial has begun with medical expert, StarTribune (April 11, 2021); Walsh, Medical expert opened 3^rd week of Chauvin trial testimony: George Floyd’s death ‘absolutely preventable,’ StarTribune (April 11, 2021); Barrett, George Floyd Could Have Survived if Restraint Eased, Cardiologist Jonathan Rich Testifies, W.S.J. (April 11, 2021); Kornfield, Hauslohner & McMilian, Live Updates: Cardiologist testifies that Derek Chauvin’s acts—not drugs or a heart condition—caused George Floyd’s death, Wash. Post (April 12, 2021); Wright, Takeaways from Day 11 of the Derek Chauvin Trial, N.Y.Times (April 12, 2021); Walsh, Brother breaks down telling jurors in Derek Chauvin murder trial of George Floyd’s love for their mother, StarTribune (April 12, 2021); Karnowski (AP), EXPLAINER: Prosecution explores Floyd’s ‘spark of life,’ StarTribune (April 12, 2021); Walsh, Simons & Sayle, What Happened Monday in the Derek Chauvin trial, StarTribune (April 12, 2021); Forliti, Karnowski & Webber (AP), Expert: Chauvin did not take action of ‘reasonable officer,’ Wash. Post (April 12, 2021); Kornfield, Hauslohner & McMilian, Live Updates: Cardiologist testifes that Derek Chauvin’s acts—not drugs or a heart condition—caused George Floyd’s death, Wash. Post (April 12, 2021).

[2] See these posts to dwkcommentaries.com: Derek Chauvin Trial: Week Four (April 2, 2021); Derek Chauvin Trial: Week Four (Commentaries) (April 5, 2021); Derek Chauvin Trial: Week Four (Sources) (April 6, 2021); Derek Chauvin Trial: Week Five (April 10, 2021); Derek Chauvin Trial: Week Five (Commentaries) (April 11, 2021); Derek Chauvin Trial: Week Five (Sources) (April 12, 2021).

Derek Chauvin Trial: Week Five (Commentaries)

Now that a summary of the testimony in Week Five has been provided [1], here is a collection of commentaries related to the trial.

Will Chauvin Testify in This Trial? [2]

Observers expect that the prosecution will finish its case-in-chief early this coming week with testimony from some members of George Floyd’s family and that the defense will start presenting its case-in-chief. The latter raises the question of whether Chauvin himself will testify.

Chauvin, of course, under the U.S. Constitution, has the privilege against self-incrimination and thus would not face any adverse legal consequences, if he (and his attorney) decide that he will not testify.

On the other hand, as Minneapolis criminal defense lawyer Joe Friedberg notes, “[T]his is a case that really centers on Chauvin’s state of mind, and the best person to tell us about that would be Chauvin, so . . . [attorney Erik Nelson] might really be forced to put him on in this case.” Friedberg added that perhaps Chauvin could testify that he placed his knee on Floyd’s shoulder, not his neck. “When the defendant takes the stand and denies the things that make up the crime, that’s got to make the jury pause.” However, Friedberg cautioned, “Remember now, [Chauvin would be] taking the stand as the most hated man in America.”

Another Minnesota criminal defense attorney, Mike Padden, also thinks Chauvin should testify. He said, “I don’t think he has any choice but to testify. It’ll be a mistake if he doesn’t. The jury needs to hear from him, that’s the bottom line.” Chauvin needs “to explain the reasoning behind his actions and to apologize, which could help negate the ‘depraved mind’ element needed to convict him on third-degree murder.”

Other attorneys and legal scholars reach the opposite conclusion: Chauvin should not testify. They believe “there’s little Chauvin can say to overcome a bystander’s graphic video showing him kneeling on Floyd’s neck for more than nine minutes as he pleaded for his life and repeatedly saying he couldn’t breathe. Pleas for mercy from several horrified bystanders, including children and an off-duty Minneapolis firefighter, were also captured in the video.”

For example, Joseph Daly, emeritus professor at Mitchell Hamline School of Law, said, “Chauvin doesn’t come across as a character that you want to root for because of the video. [If he testifie, prosecutors] will take him through every single second of that video. . . . In cross-examination he’ll just get beat up. It’ll be horrible for him. The risk is so immense for him to testify.”

Agreeing with Daly are two other Minnesota criminal defense attorneys, A.L. Brown and Andrew Gordon.

Attorney Brown said, Chauvin is “not incredibly sympathetic, so he doesn’t offer much by way of story line. It’s even worse for Chauvin because he’s got the chief of police saying,‘This guy’s not with us. We didn’t teach him to do that.’”

Attorney Gordon thinks that defense attorney Nelson already has signaled that he did not intend to call Chauvin to the stand because in the opening statement Nelson did not say much about him. “Most defense attorneys,” added Gordon, “ will tell you that you have to spend some time in your opening statement humanizing your client. You need . . .[the client] to be a person for the jurors” although Chauvin has “a baked-in advantage: . . . [he] is a cop, and the uniform and badge does a lot of the humanizing for” him.

Others have stressed that the face mask that Chauvin (and others in the courtroom) are forced to wear (unless speaking to the jury) “has hidden his reaction to testimony, including any sympathy or remorse that legal experts say can make a difference to jurors.” All the jurors see is the masked Chauvin scribbling notes on a notepad and having short unheard conversations with his attorney. Only at the start of the trial did Nelson have Chauvin remove his mask so the jurors could see his faced Yes, Chauvin appears in a well-fitted suit, shirt and neckti, not a police uniform. In addition, until one day last week, there was no one sitting in the chair in the courtroom reserved for someone from his family.

The StarTribune articles on this subject, however, fails to mention several other reasons why, in the opinion of this blogger, it would be a defense mistake to have Chauvin testify and forced to face cross-examination on the following subjects:[3]

Almost immediately after Chauvin was fired by the Minneapolis Police Department (MPD) and charged with state crimes for Floyd’s death, he had to have anticipated that he would be sued for significant money damages by Floyd’s family and, therefore, he (and his then wife) has a reason to take steps to try to protect their assets.
Such a civil lawsuit against Chauvin, the other three ex-officers and the City of Minneapolis for money damages was filed in Minneapolis federal court on July 15, 2020. Although the complaint did not specify the amount of alleged damages, the lead plaintiff’s attorney, Ben Crump, publicly stated, “This is an unprecedented case, and with this lawsuit we seek to set a precedent that makes it financially prohibitive for police to wrongfully kill marginalized people — especially Black people — in the future.” In short, the case is “the tipping point for policing in America.”
The March 12, 2021, announcement of the City of Minneapolis’ $27 million settlement of the Floyd Family’s lawsuit did not make this financial issue for Chauvin (and his former wife) disappear. The City has a claim against Chauvin (and the three other ex-officers) for contribution to help reimburse the City for at least a portion of that huge sum, and an examination of the details of the settlement agreement presumably would have provisions on whether the Family was releasing the four officers, which seems unlikely.
Reflecting this motivation to try to protect their assets from such litigation, in those early days after the killing of Floyd, Chauvin and his wife reached a divorce agreement which provided a bulk of the couple’s assets gwould go to her and which a Minnesota state court subsequently found to be fraudulent and refused to approve until it had been significantly modified.
In addition, soon after Chauvin was fired and charged with crimes in state court, there are reports that he pursued a guilty plea agreement involving his serving a prison sentence in a federal prison even though he did not then face any federal charges, but then U.S. Attorney General William Barr reportedly rejected the proposal.
Chauvin and his then wife last year also were confronted with state criminal charges over alleged fraudulent Minnesota income tax returns and failure to pay such taxes.
Related to all of the above was the Chauvin’s couple having a condominium and other property in Florida.

The Chief’s Consultations Before Firing The Four Officers [4]

In his trial testimony, Chief Medaria Arradondo stated that on the day after the death of Mr. Floyd, he announced his decision to fire Derek Chauvin and the other three officers who were involved. (The following additional details about that decision are not in the trial record, but in the cited article by Libor Jany.)

Late the night of May 25^th and the next morning, the Chief consulted with Black faith-leaders and community activists like Spike Lee, a local civil rights pioneer. At a morning meeting, according to Bishop Richard Howell of Shiloh Temple International Ministries, the Chief said he was torn about what to do. A FBI official in attendance raised the possibility of a civil rights investigation. Some in the room said there would be protests, and one even said there would be a “war.” Other attendees included Nekima Levy Armstrong, Al Flowers, Leslie Redmond (former Minneapolis NAACP President) and Steven Belton (President and CEO of the Urban League Twin Cities).The Chief told them he would discuss the options with Minneapolis Mayor Jacob Frey.

Around noon on the 26^th the Chief met with members of his senior command staff: then-Assistant Chief Mike Kjos and Deputy Chiefs Kathy Waite, Henry Halverson and Erick Fors while Art Knight (the Chief’s former chief of staff) joined by telephone. They all discussed the possibility of firing the four officers, but apparently no decision was made.

After this meeting the Chief made his decision to fire the officers and called and told the Mayor, who in a tweet at 2:00 p.m. announced the firings and said, “This is the right call.” The Chief and the Mayor then held a public news conference to announce this important decision.

Does “Blue Wall of Silence” Protect Chauvin? [5]

Usually police accused of wrongdoing can count on the “blue wall of silence”—protection from fellow officers refusing to cooperate with investigators. But that is not true for Chauvin.

As just noted, Chief Arradondo fired him immediately after the killing of Floyd and testified against him in the current trial. Other Minneapolis police officers have also so testified—Lieutenants Richard Zimmerman, Johnny Mercil and Jon Edwards and Sergeants David Ploege and Ker Yang and Inspectorr Katie Blackwell. And the other three ex-officers facing criminal trial in August on charges of aiding and abetting the killing of Floyd probably will blame Chauvin. In addition, fourteen supervisory officers, including Zimmerman, signed an open letter last year saying Chauvin “failed as a human being and stripped George Floyd of his dignity and life. This is not who we are.”

Why Didn’t Other Officers Stop Chauvin? [6]

On May 25, 2020, Officer Thomas Lane was helping Derek Chauvin hold George Floyd to the ground in handcuffs and told Chauvin at least twice that Floyd should be turned over. But Chauvin rejected the suggestion and Lane did not persist in his suggestion or express objection. Nor did Officer Kueng, was also was helping hold Floyd down. When this happened, both of them were in training under the supervision of Chauvin. Nor did Officer Thao who was a nine-year veteran of the MPD.

Rosa Brooks, a law professor at Georgetown University, says the failure of these three officers to intervene are examples “of what psychologists call ‘the bystander effect,’ paralyzed by the powerful social forces that too often operate to prevent even decent people from taking action to halt abuses.” This was despite the two rookies having had instruction at the police academy about the dangers of using bodyweight to keep a suspect in a prone position for an extended period.”

Professor Brooks says “scores of studies” have provided “a fairly clear understanding of the factors that can lead ordinary people to do nothing even when morality seems to demand intervention. People are less likely to intervene when faced with ambiguous rather than clear situations . . . They’re less likely to intervene when surrounded by peers who are also doing nothing, or when intervention would require challenging those they perceive as having authority.” The professor also says that these studies indicate people are “less likely to intervene when they believe someone else will, or should, take action, or to help those whom they view as culturally different from themselves.”

These factors, she says, “appear to have been at play in the moments leading to Floyd’s death. Chauvin was the most experienced officer on the scene, and the less experienced officers deferred to his judgment; Chauvin was insistent about keeping Floyd on the ground and indicated he was taking steps to keep Floyd alive, creating, for the other officers, a degree of ambiguity about whether Chauvin’s actions were inappropriate. Each of the three officers could see that none of his colleagues was intervening to stop Chauvin, thus diffusing responsibility for any bad outcomes.”

Finally, Brooks claims “differences of class, race and culture might have allowed the officers to view Floyd as ‘other,’ rather than as someone they felt obligated to help.” This is a dubious contention regarding Lane and Kueng as both “had received instruction at the police academy about the dangers of using bodyweight to keep a suspect in a prone position for an extended period of time” and “both were perceived by their peers as caring, idealistic young officers. Kueng, one of just 80 Black officers in a department of 900, had joined the Minneapolis police because he hoped an increasingly diverse force would reduce police racism and aggression toward people of color. Lane, who tutored Somali children in his spare time, was known for his calmness and his ability to defuse tense situations.”

In any event, Professor Brooks argues that effective intervention to stop abuses is a skill that can be taught and learned. It also requires creating a culture encouraging intervention and practice. It also requires “redefining loyalty. Instead of defining loyalty as ‘letting your friends do whatever they want,’ loyalty was redefined as ‘helping your friends avoid potentially fatal mistakes.’”

If the MPD had had a more intensive intervention training program, one of the other three officers could “have pulled Chauvin off Floyd, saying, ‘I can’t let you do this. He’s going to get hurt, or worse, and you’re going to get fired, or worse. Let me handle this.”

All of this analysis by Professor Brooks seems contradicted by the lay bystanders at the site on May 25^th—male and female, young and old, those with some experience with use of force and those without such experience, all not having intervention training. Nonetheless, they all persisted in urging the officers to stop holding Floyd on the pavement with Chauvin’s knee to his neck or back. They truly were courageous in so doing.

Permissible Neck Restraints.[7]

At the time of Floyd’s arrest, MPD policy allowed for two types of neck restraint. One was called “conscious neck restraint,” which permitted light pressure on the neck “without rendering unconsciousness” of an individual who was “actively resisting” arrest. The other type was an “unconscious neck restraint” allowing officers to use their arms or legs to knock out a person by pressing carotid arteries on either side of the neck, blocking blood flow to the brain for an individual “exhibiting active aggression.” This MPD policy also instructed officers, at the first possible opportunity to turn people on their sides once they are handcuffed and under control to avoid “positional asphyxia in which breathing becomes labored in a prone position and an lead to death.

Preparing for Reactions to Possible Acquittal of Chauvin [8]

The jury’s verdict is still in the future, perhaps weeks away. Although this blogger, expects and hopes for a guilty verdict, the city and others need to plan for a possible acquittal.

Many people here (and elsewhere) continue to call for conviction. For example, on April 9, over 100 people attended the “We Can’t Sleep If We’re Not Safe From Police Violence” rally and march in downtown Minneapolis that was organized by the Minnesota Chapter of the Council on American-Islamic Relations, Communities United Against Police Brutality and Black Lives Matter Minnesota. Chants were heard—“Prosecute the police, no justice, no peace.”

The City of Minneapolis’ Office of Violence Prevention has entered into partnerships with seven community organizations to send volunteers into different parts of the City to connect people with social services, calm conflicts before they escalate into violence and pass along residents’ concerns to city officials. They, however, will not replace the police.

The Legal Rights Center, a nonprofit criminal defense law firm in Minneapolis, has been conducting weekly Zoom and Instagram discussions for the public about legal issues in the current trial .

The church near the site of the Floyd killing—Worldwide Outreach for Christ—has developed a ministry of reaching out to the young men, many of whom are gang members—who gather there to offer them free conversations and counseling to help them turn their lives around.

On the other hand, a City attorney advised the Minneapolis Civil Rghts Commission against preparing and disseminating statements about the current trial.

Reforming Police Training and Practices

The most general question raised by the Chauvin trial is whether it will prompt more general reform of police recruitment, training and practices in Minneapolis and the rest of the U.S. by state and federal governments.

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

[1] Derek Chauvin Trial: Week Five, dwkcommentaries.com (April 10, 2021).

[2] Xiong, As defense prepares to call witnesses, question remains: Will Derek Chauvin testify?, StarTribune (April 10, 2021); Groves (AP), EXPLAINER: Could mask hamper ex-officer’s image with jurors?, StarTribune (April 7, 2021).

[3] See these posts to dwkcommentaries.com: George Floyd’s Family Sues City of Minneapolis and Four Ex-Officers in George Floyd’s Death (July 16, 2020); Family’s Complaint Against Four Ex-Police Officers Over His Death (July 17, 2020); Chauvin and Wife Now Charged with Minnesota Tax Crimes (July 22, 2020); State Court Rejects Chauvin Divorce Settlement (Nov. 20, 2020); Complications in Derek Chauvin Divorce Case (Jan. 20, 2021); Comment: Court Approves Redacted Chauvin Divorce Agreement (Feb. 4, 2021); Did Derek Chauvin Agree To Plead Guilty to Third-Degree Murder? (Feb. 11, 2021): Derek Chauvin Trial: Week One (Mar. 15, 2021).

[4] Jany, In interview with agents, Minneapolis chief Arradondo details ‘emotional’ discussions with officers before officers were fired hours after George Floyd’s death, StarTribune (April 7, 2021).

[5] Givhan, In trial testimony, Chauvin is cast beyond the blue wall, Wash. Post (April 6, 2021); Editorial, Opinion: The blue wall of silence has broken in the Chauvin trial, but that doesn’t absolve the police, Wash. Post (April 7, 2021); Crump & Romanucci [attorneys for Floyd family], Opinion: At Derek Chauvin’s trial, a dangerous code of silence is crumbling, Wash. Post (April 8, 2021); Salter(AP), ‘Blue wall of silence’ takes hit in Chauvin’s murder trial, StarTribune (April 9, 2021).

[6] Brooks, What About the Cops Who Watched George Floyd Die?, Politico (April 9, 2021).

[7] Tarm (AP), EXPLAINER: Was officer’s knee on Floyd’s neck authorized?, StarTribune (April 5, 2021).

[8] Jackson, More than 100 rally in downtown Minneapolis for police accountability, Star Tribune (April 9, 2021); Navratil, Minneapolis to boost community patrols during Derek Chauvin trial, StarTribune (April 9, 2021); Navratil, Minneapolis lawyers advise city-appointed task force on George Floyd to keep quiet for now, StarTribune (April 9, 2021); Du, Minneapolis criminal defense attorneys offer legal takes, healing spaces during Chauvin trial, StarTribune (April 9, 2021); Du, Church at 38^th and Chicago reaches out to gang members nearby, StarTribune (April 9, 2021);