Criminal Cases Over George Floyd Killing: Recent Developments  

As mentioned in previous posts, former Minneapolis police officer Derek Chauvin was charged, tried, convicted and sentenced in Minnesota state trial court for the May 2020 killing of George Floyd[1] and he has been criminally charged in Minnesota federal court for that same killing.[2] The other three former police officers who were so involved (Thomas Lane, J. Alexander Kueng and Tou Thao) also face state and federal criminal charges with their state trial scheduled for March 2022 while their request for prohibition of video or audio coverage of the trial is still pending.[3]

There have been recent developments in these cases.

Minnesota Supreme Court OverturnsThird-Degree Murder Conviction of Mohammed Noor.[4]

Former Minneapolis police Officer Mohammed Noor, after trial in state court, was convicted of third-degree murder and second-degree manslaughter for the July 15, 2017, killing of Justine Ruszczyk Damond, and on September 15, 2021, the Minnesota Supreme Court unanimously reversed the third-degree murder conviction and remanded the case for re-sentencing on the manslaughter charge.

The Supreme Court held that the third-degree murder statute required a “depraved mind” or a “generalized indifference to human life”  and that  requirement cannot be satisfied when a defendant’s conduct is aimed at a single person, as was the case with Noor.

Upon remand to the trial court, Noor will be re-sentenced for his conviction for second-degree manslaughter, which is expected to be four years, which given his imprisonment so far for 28 ½ months means he could be eligible for supervised release in 3.5 months.

This decision raises the question of whether it will affect Chauvin’s sentence of 22 ½ years for the second-degree murder of George Floyd. Although the jury also had found Chauvin guilty for third-degree murder and second-degree manslaughter, the 22 ½ year sentence was only based on conviction for second-degree murder.[5] Therefore, the Noor decision does not directly impact Chauvin’s sentence. Perhaps Chauvin’s attorney will argue on appeal that the third-degree murder charge against Chauvin unfairly impacted the entire case against him and thus calls for complete reversal by the appellate court, but Susan Gaertner, former Ramsey County Attorney, thinks that is highly unlikely. This blogger, a retired attorney without criminal law experience, concurs in that reaction.

Chauvin and the Other Three Defendants Plead to Federal Criminal Charges.[6]

In May 2021, Chauvin and the three other officers were criminally charged in federal court with allegedly using the “color of the law” to deprive Mr. Floyd of his constitutional rights to be “free from the use of unreasonable force” in his May 2020 arrest, and on September 14, 2021, all four entered not guilty pleas in federal court.

The pending motions of the other three officers to be tried separately from Chauvin have not yet been acted upon.

On September 16, Chauvin was arraigned on a separate charge in federal court for alleged use of excessive force in the September 2017 arrest of a 14-year-old boy, and Chauvin entered a not guilty plea to this charge.

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[1] Derek Chauvin Trial: Week Seven (CONVICTION), dwkcommentaries.com (April 21, 2021); Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment, dwkcommentaries.com (June 28, 2021).

[2] Federal Criminal Charges Against Ex-Minneapolis Policemen Over George Floyd Killing, dwkcommentaries.com (May 7, 2021); Federal Criminal Cases Against Ex-Minneapolis Cops for George Floyd Death: Initial Proceedings, dwkcommentaries.com (June 2, 2021).

[3]  Defendant’s Motion To Exclude Video and Audio Recording of Proceedings, State v. J. Alexander Kueng, Thomas K. Lane, District Court , Court File NO.: 27-CR-20-12953 & 27-CR-20-12931 (Aug. 25, 2021); State’s Memorandum of Law Opposing Motions To Exclude Audio and Video Recording of Proceedings, District Court File NO.: 27-CR-20-12953 & 27-CR-20-12931 & 27-CR-20-12949 (Sept. 1, 2021).

[4] Minnesota Supreme Court Hears Argument About Scope of Third- Degree Murder Statute, dwkcommentaries.com (June 10, 2021); Xiong & Olson, Supreme Court overturns third-degree murder conviction against ex-Minneapolis police officer Mohammed Noor, StarTribune (Sept. 16, 2021); State v. Noor, Opinion, No. A19-1089 (Minn. Sup. Ct. Sept. 15, 2021).

[5] See. n.1.

[6]  Mannix, Four former Minneapolis officers plead not guilty to federal civil rights charges, StarTribune (Sept. 14, 2001); Olson, Chauvin enters not guilty plea to federal civil rights charge involving a 14-year-old, StarTribune (Sept. 16, 2021); Federal Criminal Case Over George Floyd Killing: Request To Sever Chauvin Case from Three Co-Defendants Cases, dwkcommentaries.com (Aug. 9, 2021).

 

Beautiful Performance of “Hallelujah” 

Early this morning, I woke up early and turned on my iPad to go to cnn.com and see if there was any important breaking news. I did not find any such item. But I noticed an entry entitled “Watch H.E.R. perform ‘Hallelujah.’” Although I had no idea of who H.E.R. was, I did open this link  because I have listened to this song many times and always have  found it very moving.

I am glad I did because it was an astonishingly beautiful performance. A little Internet research told me that “H.E.R.“ (“Having Everything Revealed”) since 2016 is the stage name for the 24-year-old Gabriella Sarmiento Wilson, who was born in Vallejo, California to a Filipina mother and African-American father. She has produced many records of contemporary R&B music and has received many awards, including NAACP Image, BET and Net Honors this year so far. [1]

This performance appeared on a September 11 CNN television special, “Shine a Light,” hosted by Jake Tapper that paid tribute to the nearly 3,000 people who were killed in the 9/11 attacks and featured discussions with young adults who were affected by that attack and its aftermath and other musical performances by Brad Paisley, Common, and Maroon 5 as well as appearances by Robert DeNiro, Leonardo DiCaprio and Eli Manning. [2]

When I listened to H.E.R. sing “Hallelujah” I remembered that it was composed by Leonard Cohen, a Canadian composer and musician and research prompted by H.E.R.’s performance has revealed that Cohen was born on September 21, 1934 and died on November 7, 2016 and was also a poet and novelist. He was inducted into the Canadian Music Hall of Fame, Canadian Songwriters Hall of  Fame and the Rock and Roll Hall of Fame and invested as a  Companion of the Order of Canada, the nation’s highest civilian honor.

Cohen’s Lithuanian-born mother was the daughter of a Talmudic writer and his paternal grandfather was the founding president of the Canadian Jewish Congress. His family observed Orthodox Judaism and he was described as a Sabbath-observant Jew. He also said, “I’m very fond of Jesus Christ. He may be the most beautiful guy who walked the face of this earth. Any guy who says ‘Blessed are the poor. Blessed are the meek’ has got to be a figure of unparalleled generosity and insight and madness … A man who declared himself to stand among the thieves, the prostitutes and the homeless. His position cannot be comprehended. It is an inhuman generosity. A generosity that would overthrow the world if it was embraced because nothing would weather that compassion. I’m not trying to alter the Jewish view of Jesus Christ. But to me, in spite of what I know about the history of legal Christianity, the figure of the man has touched me.” In addition, later in life Leonard was ordained a Zen Buddhist monk[3]

I, therefore, see this song by Cohen as a religious song expressing gratitude and adoration to God with resonance in  both Jewish and Christian and perhaps other religions.[4]

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[1] H.E.R., Wikipedia; H.E. R. Discography, Wikipedia; H.E.R.—official website.

[2] CNN will air 9/11 special “Shine A Light” tonight, cnn.com (Sept. 11, 2021).

[3] Leonard Cohen, Wikipedia; Leonard Cohen, Hallelujah, leonardcohen.com.

[4] Hallelujah, Wikipedia; Wood, What did Leonard Cohen really mean when he sang ‘Hallelujah’?, L.A. Times (Nov. 11, 2016); Kemp, “Hallelujah: Leonard Cohen, A Journey, A Song” Review: Wide-Reaching Doc Struggles to Chronicle an Icon, IndieWire (Sept. 2, 2021.

U.S. Resettlement of Refugees and Recent Afghan Evacuees

The U.S. currently is engaged in resettling in this country refugees from around the world under previously established international refugee resettlement processes as well as recent Afghan evacuees under newly modified processes for Afghans.

Here is a summary of the legal requirements and administrative procedures for these important developments.

U.S. Resettlement of Refugees

  1. International Legal Protection of Refuges[1]

In 1951 an international conference of diplomats adopted an international treaty to protect refugees (Convention Relating to the Status of Refugees).

This treaty went into effect or force in April 1954 after its ratification by six states. However, the U.S. did not directly ratify this treaty, but did so indirectly in 1968 when under the leadership of President Lyndon Johnson the U.S. ratified a treaty amendment (Protocol Relating to the Status of Refugees).

The U.S., however, did not adopt implementing legislation until 1980, when President Jimmy Carter led the adoption of the U.S. Refugee Act of 1980, which included the treaty’s following definition of “refugee” (with U.S. express addition for “past” persecution):

  • “ (A)ny person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of [past] persecution or a well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.. . . ”

As of January 20, 2020, there were 146 parties to the Convention and 147 to the Protocol.

  1. International Resettlement of Refugees[2]

After international cooperation on resettlement of specific groups of refugees, 1956-1995, the United Nations High Commissioner for Refugees (UNHCR) in 1995 organized the Annual Tripartite Consultations on Resettlement for the UNHCR, nation states and civil society. By the end of 2019, these consultations had established a global resettlement policy and procedures to attempt to provide locations for such resettlement that can provide the services that refugees need. These procedures have resulted in resettlement of over 1 million refugees: 90 percent of whom came from Myanmar, Syrian Arab Republic, Iraq, Democratic Republic of Congo and Somalia and were resettled in the U.S., Canada, Australia, Sweden and the United Kingdom.

At the end of 2019, the UNHCR estimated there were 26 million refugees in the world, about one half of whom are under the age of 18. This group is part of the 79.5 million forcibly displaced people in the world (the other 53.5 million are forcibly displaced within their own countries and thus not entitled to refugee status).

  1. U.S. Resettlement of Refugees[3]

The U.S. has participated in this international resettlement program under the overall direction of the Departments of State and Homeland Security.

Under U.S. law the U.S. President establishes annual quotas for such resettlements. The largest such quota was 200,000 in 1980 when President Carter led the U.S. adoption of the Refugee Act of 1980. In 1999 under President Clinton the quota was 132,631, and in 2016 under President Obama it was 84,994.

For Fiscal 2019 President Trump reduced the number of refugees for resettlement in U.S. to 15,000 and required cities and counties to file written affirmative consents for such resettlements with the State Department, but a federal court held that requirement was illegal. Nevertheless, many states, including Minnesota, granted such consents along with statements about the many contributions by refugees to their states.

President Biden initially said he would maintain the 15,000 quota set by Trump for this fiscal year, but after strong objections by influential Senators and others, the White House on May 3, 2021, stated the it was revising the quota to 62,500 for this fiscal year although it was unlikely that it would meet that number by that year’s end on 9/30/21. President Biden also said that he intends to increase the quota for the next fiscal year to 125,000.

  1. Refugee Resettlement in Minnesota [4]

From 2005 through 2019 the State of Minnesota had resettled 33,189 refugees. The largest numbers came from Somalia (13,674), Burma (8,604), Ethiopia (2,194), Laos (2,042), Iraq (1,290), Bhutan (1,188) and Liberia (1,171).

For Fiscal 2021 (ending 9/30/21), Minnesota had a resettlement goal of 500, but as of 5/12/21 had received only 30. They came from the Democratic Republic of Congo, Ethiopia, Somalia, Ukraine and Republic of Moldova (Eastern European county and former part of USSR). Because of COVID-19, the goal of 500 probably will not be met.

For Fiscal 2022 (before the evacuation of Afghans), Minnesota expected to have a resettlement goal of 1,900 given President Biden’s stated intent to increase the national total to 125,000.

Such resettlements are coordinated by refugee resettlement agencies in the State: Minnesota Council of Churches (Refugee Services), International Institute of Minnesota, Lutheran Social Services of Minnesota, Catholic Charities of Southern Minnesota and Arrive Ministries.

Minneapolis’ Westminster Presbyterian Church, where this blogger is a member, is launching its Refugee Co-Sponsorship Team of six to twelve individuals under the leadership of three “champions” with guidance of the Minnesota Council of Churches and anticipates receiving its first refugee family this October.

Our Team’s commitment is for four to six months starting with setting up an apartment selected by the Council with furnishings that it and our Team provides; welcoming the family on their arrival at the Minneapolis-St. Paul Airport and transporting them to their apartment;  helping the family’s orientation to their new neighborhood, city and services; transporting them to various meetings and shopping; assisting school registration for any children and adult ESL enrollment; providing information about various public services and obligations; and helping them find employment. In short, being friends to our new residents. The co-sponsorship ends with a closing ceremony, transitioning the relationship to mutual friendship, rather than a continued helping relationship. [5]

U.S. Resettlement of Recent Afghan Evacuees.

The recent turmoil in Afghanistan has resulted  in the U.S. evacuation from that country of approximately 130,000 people (124,000 Afghans and 6,000 U.S. citizens).

Many of the Afghan allies with U.S. special immigrant visa applications and their families who recently escaped Afghanistan were flown from Kabul to Washington, D.C. for their subsequent transfer to U.S. forts in Virginia (Fort Lee),Texas (Fort Bliss) and western Wisconsin (Fort McCoy, which is about 169 miles southeast of Minneapolis). Others were flown to U.S. military bases in other countries for processing and hoped-for transfers to the U.S.[6]

This summary is based upon the cited sources with recognition that this is a very complex and changing situation and readers’ corrections and amplifications are most welcome.

  1. Legal Status of Afghan Evacuees[7]

Most, if not all, of these Afghans have not been through the previously described procedures for resettlement of refugees and have not been determined to meet the requirements for refugee status. (Some articles erroneously refer to them as “Afghan refugees.”)

Instead, they are being vetted by U.S. agencies for meeting the following requirements for Afghan Special Immigrant Visas (“SIVs”):

  • employment in Afghanistan for at least one year between October 7, 2001, and December 31, 2023, by or on behalf of the U.S. government or by the International Security Assistance Force (ISAF), or a successor mission in a capacity that required the applicant to serve as an interpreter or translator for U.S. military personnel while traveling off-base with U.S. military personnel stationed at ISAF or to perform activities for U.S. military personnel stationed at ISAF; and
  • Have experienced or be experiencing an ongoing threat as a consequence of their employment.

Alternatively some Afghans might be eligible for Priority 2 (P-2) designation granting U.S. Refugee Admissions Program access for Afghans and their eligible family members by satisfying one of the following conditions:

  • “Afghans who do not meet the minimum time-in-service for a SIV but who work or worked as employees of contractors, locally-employed staff, interpreters/translators for the U.S. government, U.S. Forces Afghanistan (USFOXRX-A), International Security Assistance Force (ISAF), or Resolute Support;”
  • “Afghans who work or worked for a U.S. government-funded program or project in Afghanistan supported through a U.S. government grant or cooperative agreement;” or
  • “Afghans who are or were employed in Afghistan by a U.S.-based media organization or non-governmental organization.”

Afghans also could be eligible for “the Priority (P-1) program by virtue of their circumstances and apparent need for resettlement who are referred to the P-1 program . . .  by the UN High Commissioner for Refugees (UNHCR), a U.S. embassy, or a designated NGO.”

However, an Associated Press reporter claims that “the majority will arrive without visas as ‘humanitarian parolees,’ lacking a path to legal U.S. residency and the benefits and services offered to traditional refugees, according to U.S. officials and worried aid groups working closely with the government.” Instead, “Afghan parolees who have arrived at U.S. military bases will be eligible for an ad hoc State Department program that provides limited assistance for up to 90 days, including a one-time $1,250 stipend. But they will not have the full range of medical, counseling and resettlement services available to immigrants who arrive through the U.S. refugee program.”

  1. U.S. Administrative Agencies Involved in “Operation Allies Welcome[8]

On August 19, 56 Senators sent a bipartisan letter to President Biden calling for “the urgent evacuation of Afghan Special Immigrant Visa (SIV) applicants and their families, as well as the full and immediate implementation of [the above legislation] to expand the Afghan SIV program and streamline the application process.”

That message was in accord with the Biden Administration’s desires. On August 29, President Biden directed the Department of Homeland Security to be the lead agency coordinating this resettlement effort and that agency’s Secretary (Alejandro N. Mayorkas) simultaneously appointed Robert J. Fenton, Jr. with 29 years of experience in FEMA large-scale response and recovery efforts to lead the interagency Unified Coordination Group in this effort. He will be working with Jack Markell, a former Delaware Governor and now the White House’s coordinator of “Operation Allies Welcome.”

  1. Resettlement of Afghan Evacuees in U.S. [9]

Operation Allies Welcome is asking the nonprofit organizations that have contracted with the U.S. State Department for resettlement of refugees to also handle the resettlement of the Afghan evacuees. This task is made much more difficult by last year’s shrinkage of these agencies caused by President Trump’s reduction of the quota for such resettlement to 15,000 and the associated reduction of federal financial support for same and by the size and unresolved issues about the Afghan evacuees.

  1. Societal Reactions to Afghan Resettlement [10]

There are general reports about positive reactions to such resettlement from U.S. citizens and organizations.

The State of Minnesota did so in an August 19, 2021, letter to President Biden from Minnesota Governor Tim Walz and Lieutenant Governor Peggy Flanagan. It stated that Minnesota “in the past . . . has stepped forward to help those who are fleeing desperate situations and need a safe place to call home” while acknowledging, “New Minnesotans strengthen our communities and contribute to the social fabric of our state. They are our neighbors.” Therefore, “we [in Minnesota] stand ready to work with you and your administration to welcome [Afghan] families as this effort to provide safety and refuge continues.”

Minnesota’s U.S. Senator Amy Klobuchar has voiced a similar opinion by offering her office’s assistance to American citizens and Afghan allies looking to evacuate that country and by signing a bipartisan letter to the President urging support for evacuation efforts.

In addition, Temple Israel of Minneapolis is embarking on a program to help some of these Afghans to resettle in Minnesota and has enlisted Westminster Presbyterian Church as a co-sponsor for such resettlements. The Temple’s program probably springs from the Hebrew Immigrant Aid Society (HIAS) as well as a continuous Jewish presence in the territory of Afghanistan from the 8th century CE until the 20th century.[11]

Conclusion[12]

Westminster’s involvement with immigrants is not new in our 160 years. Indeed, the church was established in 1857 by Scottish and Welsh newcomers on land that had been home to the Dakota people for many generations. In 1870 we established our first global mission partnership after our third pastor had visited China and in the 1880s began a formal ministry teaching English and providing support to Chinese immigrants that continued in the 20th century.

Our church also has partnerships with Protestant churches in Cuba, Cameroon and Palestine.

These Westminster ministries are inspired by various Biblical passages.

The book of Leviticus says, “When an alien resides with you in your land, you shall not oppress the alien. The alien who resides with you shall be to you as the citizen among you. You shall love the sojourner as yourself, for you were sojourners in the land of Egypt. I am the Lord your God.” (Leviticus 19: 33-34.) (The Hebrew word for “alien” is “ger,”which means stranger in the land, one who sojourns among you.)

Jesus, of course, told stories about heroes who are disliked foreigners, like the good Samaritan (Luke 10: 25-37) , or when He welcomes those whom others shun as outsiders, like the Samaritan woman at the well (John 4: 1-26) and when He ignores the then current mandate no to pay attention to people living with leprosy or other illnesses (Matthew 8: 1-3).  As our Pastor, Rev. Tim Hart-Andersen said in his recent sermon, “As Christians, our core conviction insists on hospitality to those deemed other by the world around us—and anyone else known to be the most vulnerable in the community.”

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[1] UNHCR, Convention and Protocol Relating to the Status of RefugeesRefugee Act of 1980; Convention Relating to the Status of Refugees, Wikipedia; List of Posts to dwkcommentaries—Topical: LAW (REFUGEE & Asylum).

[2]  UNHCR, The History of Resettlement (2019).

[3] U.S. State Dep’t, About Refugee AdmissionsU.S. State Governments Celebrate Refugee Accomplishments, dwkcommentaries.com (Feb. 2, 2020); U.S. State Dep’t, Report to Congress on Proposed Refugee Admissions for Fiscal Year 2021 (Oct. 22, 2020); U.S. Reduces Refugee Admissions to 15,000 for Fiscal 2021, dwkcommentaries.com (Oct.  2, 2020); U.S. State Dep’t, Report to Congress on the Proposed Emergency Presidential Determination on Refugee Admissions for Fiscal Year 2021 (Feb. 12, 2021); Joe Biden Raises Trump refugee cap  after backlash, BBC News (May 4, 2021);UNHCR, UNHCR applauds US decision to increase refugee resettlement (May 3, 2001). Minnesota Council of Churches, Refugee Services.

[5]  Minnesota Council of Churches, Refugee Services; Minnesota Council of Churches, Help Afghan Refugees (Aug. 30, 2021); Campbell, Schulze & Krohnke, Our Refugee Family Co-Sponsorship: An Invitation to Love the Sojourner Among Us, Westminster News (Sept. 2021).

[6] U.S. Defense Dep’t, U.S. Seeks to Open More Locations to Aid Evacuation From Kabul, General Says, DOD News (Aug. 21, 2021); Assoc. Press, Afghan refugees arrive, temporarily, in northern Virginia, Wash. Post (Aug. 22, 2021); Assoc. Press, Afghan refugees begin arriving at Fort McCoy in western Wisconsin, StarTribune (Aug. 23, 2021); Musa, The United States Needs an Afghan Refugee Resettlement Act, Foreign Policy (Aug. 19, 2021), ; Baghdassarian & Carney, Special Immigrant Visas for the United States’ Afghan Allies, Lessons Learned from Promises Kept and Broken, Lawfare (Aug. 19, 2021),

[7] State Dep’t, Special Immigrant Visas for Afghans—Who Were Employed by/on behalf of the U.S. Government; State Dep’t, U.S. Refugee Admissions Program Priority Designation 2 for Afghan Nationals (Aug. 2, 2021); Press Release, BREAKING: Senate Passes Shaheen-Ernst Bill to Protect Afghan Allies through SIV Program as Part of Supplemental Spending Bill (July 29, 2021); Emergency Security Supplemental Appropriations Act, 2021, Public Law 117-331, enacted on July 30, 2021; Assoc. Press, For Afghan evacuees arriving to U.S., a tenuous legal status and little financial support, Wash. Post (Sept. 1, 2021).

[8] Shaheen, Ernst Lead Bipartisan Effort Urging the Administration on Immediate Evacuation & Full Implementation of their SIV Legislation Aug. 19, 2021). Homeland Security Dep’t, DHS to Serve as Lead Federal Agency Coordinating Efforts to Resettle Vulnerable Afghans, (Aug. 29, 2021); Sacchetti, Miroff & Demirjian, Biden names former Delaware governor Jack Markell to serve as point person on Afghan resettlement in the United States, Wash. Post (Sept. 3, 2021).

[9] U.S. Refugee Organizations Race to Prepare for Influx of Afghans, W.S.J. (Aug. 31, 2021). Hackman, Afghan Refugees in the U.S.: How They’re Vetted, Where They Are going and How to Help, W.S.J. (Sept. 3, 2021). Assoc. Press, US faith groups unite to help Afghan refugees after war, StarTribune (Sept. 2, 2021).

[10] Office of Governor Walz & Lt. Governor Flanagan, Governor Walz and Lieutenant Governor Peggy Flanagan: Minnesota Stands ready to Welcome Afghan Refugee Families (Aug. 19, 2021); Assoc. Press, Walz extends Minnesota’s welcome mat to Afghan refugees (StarTribune (Aug. 20, 2021). News Release, Klobuchar Announces Office Assistance for Americans and Afghan Allies Evacuating Afghanistan (Aug. 18, 2021).

[11] HIAS Statement on Afghanistan Crisis (Aug. 16, 2021); History of the Jews in Afghanistan, Wikipedia; Oreck, Afghanistan Virtual Jewish History Tour, Jewish Virtual Library; The Jews of Afghanistan, Museum of the Jewish People.  Westminster’s Response to Crisis in Afghanistan (Aug. 8, 2021).

[12] Rev. Timothy Hart-Andersen & Rev. David Tsai Shinn, Sermon: Concerning the Sojourner (June 20, 2021). Westminster Presbyterian Church, Global Partners Ministry Team.

 

Federal Criminal Case Over George Floyd Killing: Requests To Sever Chauvin Case from Three Co-Defendants Case 

On April 20, 2021, the  first criminal trial over the killing of George Floyd resulted in a Minnesota state court jury verdict holding former Minneapolis police officer Derek Chauvin guilty on counts of second-degree murder, third-degree murder and second-degree manslaughter.  On June 25, 2021, Minnesota District Court Judge Peter Cahill sentenced Chauvin to 22.5 years imprisonment for these crimes. [1]

Since then the Minnesota state court has handled various issues relating to the Chauvin conviction and sentencing while also preparing for the criminal trial in March 2022 of the other three former Minneapolis police officers involved in the killing of Mr. Floyd (J. Alexander Kueng, Thomas Lane and Tou Thao).[2]

Federal Criminal Cases Over the Killing of George Floyd[3]

In the meantime, on May 6, 2021, the U.S. Department of Justice filed in the U.S. District Court in Minneapolis an indictment against Chauvin and these other three former Minneapolis police officers. These were the charges:

  • Count 1 charged Derek Chauvin, “while acting under color of law . . . willfully deprived George Floyd of the right, secured and protected by the Constitution and laws of the United States, to be free from an unreasonable seizure, which includes the right to be free from the use of unreasonable force by a police officer.”
  • Count 2 charged Tou Thao and J. Alexander Kueng, “acting under color of law, willfully deprived George Floyd of the right, secured by the Constitution and laws of the United States, to be free from an unreasonable seizure . . . [by failing] to intervene to stop . . . Chauvin’s use of unreasonable force.”
  • Count 3 charged all four defendants, “while acting under color of law, willfully deprived George Floyd of the right, secured and protected by the Constitution and laws of the United States, not to be deprived of liberty without due process of law, which includes an arrestee’s right to be free from a police officer’s deliberate indifference to his serious medical needs [when they saw ] George Floyd lying on the ground in clear need of medical care, and willfully failed to aid Floyd, thereby acting with deliberate indifference to a substantial risk of harm to Floyd.”

Also on May 6, 2021, the Department of Justice filed in the federal court in Minneapolis another indictment of Chauvin for alleged use of unreasonable force against a juvenile in 2017. But the other three former Minneapolis policemen were not involved in this case.

Motions To Sever the Federal Chauvin Case from That Case Against the Other Three Ex-Cops[4]

As of August 4, 2021, the docket sheet for the federal case over the killing of Mr. Floyd had 104 entries, almost all of which are preliminary matters not requiring comments here.

However, on August 3, defendants Thao, Kueng and Lane filed motions to sever their cases from the one against Chauvin, Thao’s motion had the following most extensive statement pf reasons for severance:

  1. The defendants were “not properly joined under Rule 8(b) of the Federal Rules of Criminal Procedure,” which allows charging “2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.”
  2. “The jury will have insurmountable difficulty distinguishing the alleged acts of each defendant from the alleged acts of his co-defendants.”
  3. ”Evidence may be introduced by each defendant which would be inadmissible against other defendants in a separate trial to the prejudice of these defendants.”
  4. “The counts of the indictment are not properly joined under Rule 8(a) of the Federal Rules of Criminal Procedure,which allows charging “a defendant in separate counts with 2 or more offenses if the offenses charged—whether felonies or misdemeanors or both—are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.”
  5. “Mr. Thao’s Fifth Amendment right to not incriminate himself will be prejudiced by the joinder of the counts.”
  6. “Evidence which would be inadmissible were the counts tried separately, may be admitted and considered by the jury to the prejudice of Mr. Thao.”
  7. “The jury will have insurmountable difficult distinguishing evidence presented on one count from that evidence presented on other counts, and will inevitably consider the evidence cumulatively.”
  8. “Mr. Thao will obtain a fair and more impartial Trial [if] he is tried separately from his co-defendants.”

As other filings however, make clear, the U.S. opposes the severance motions but agrees to abide by any order the Court may issue on these motions. However, “a decision on severance is pre-mature,” and all parties “jointly ask that [these] motions[s] be reserved until a point in the future when information relevant to severance of Mr. Chauvin becomes more developed.[5]

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[1] Derek Chauvin Trial: Week Seven (CONVICTION), dwkcommenbtaries.com (April 21, 2021); Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment, dwkcommentaries.com (June 28, 2021).

[2] Xiong, State trial postponed to March 2022 for ex-officers charged with aiding and abetting murder in George Floyd death, StarTribune (May 13, 2021);  Bailey, Trial for 3 former officers charged in George Floyd murder delayed until March, Wash. Post (May 13, 2021); Furber, Judge Delays Trial for Other Officers Charged in Killing of George Floyd, N.Y. Times (May 13, 2021).

[3] Federal Court Charges Against Ex-Minneapolis Policemen Over George Floyd’s Killing, dwkcommentaries.com (May 7, 2021); Federal Criminal Cases Against Ex-Minneapolis Copes for George Floyd Death: Initial Proceedings, dwkcommentaries.com (June 2, 2021).

[4] Forliti (AP), Ex-cops charged in Floyd death want separation from Chauvin, StarTribune (Aug. 3, (2021); Xiong, Former Minneapolis officers request separate federal trial from Derek Chauvin, StarTribune (Aug. 3, 2021); Motion for Severance. United Sates v. Thao, U.S. Dist. Ct., Dist. Minn. File No. 21-CR-108(2) (Aug. 3, 2021); Defendant’s Pretrial Motion for Severance of Derek Chauvin (Defendant 1), U.S. v. Kueng, U.S. Dist. Ct., Dist. Minn. File No. 21-CR-108(2) (Aug. 3, 2021); Motion To Join Co-Defendants Pretrial Motions, U.S. v. Lane, U.S. Dist. Ct., Dist. Minn. File No. 21-CR-108 (Aug. 3, 2021).

[5] Defendant’s Meet and Confer Notice, U.S. v. Kueng, U.S. Dist. Ct., Dist. Minn. File No. 21-CR-108(2) Aug. 3, 2021.See generally List of Posts to dwkcommentaries—Topical: George Floyd Killing.

Derek Chauvin Trial: Court Denies State’s Motion To Amend Sentencing Opinion          

“On July 7, 2021, the State of Minnesota made an unusual request of Hennepin County District Court Judge Peter Cahill: revise its June 25, 2021, Sentencing Memorandum Opinion regarding Derek Chauvin, but not its 22.5 year sentencing order for him. The requested change was to include the presence of children at the scene of George Floyd’s murder as an aggravating factor for sentencing.” (Emphasis added.)[1]

Only six days later, on July 13, Hennepin County District Court Judge Peter Cahill denied this request or motion.[2]

The Judge first noted that the State did “not cite any statues or rules it contends vest this Court with jurisdiction over this case “ at this juncture and did not request or expect any response from Chauvin. (Pp. 1-2.) In other words, there was no legal basis for the State’s request.

Judge Cahill then made the following criticisms of the merits of the State’s request:

  • It ignored the Court’s focus: Chauvin’s conduct toward George Floyd on May 25, 2020.
  • The Court did not find or write in the Sentencing Memorandum Opinion that the four minor eyewitnesses were not traumatized, rather it stated that the trial evidence did not present any objective indicia of trauma.” (Emphasis by Court.)
  • The State failed to exercise its right to a separate contested sentencing hearing on alleged aggravating factors.
  • The State gave lower priority and less attention to the presence of children in its arguments for aggravating factors for sentencing.
  • The Court was not intending “to send a message” of any kind in its sentencing.
  • The Court did not make its sentencing decision on the basis of the racial or ethnic status of any of the observers at the May 25, 2020 scene of the killing of Mr. Floyd or of the three young women and nine-year-old girl observers.
  • The State ignores the law that the court has to find “substantial and compelling reason” why an aggravating factor may call for an aggravated sentence, and cases so involving the presence of children are distinguishable.
  • The court, in accordance with the law, imposed a 22.5 year sentence on Chauvin that was “rational and just, . . helps to promote public safety, . . . reduces sentencing disparity, . . . and is proportional to the severity of the offense and the defendant’s criminal history.

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[1] Derek Chauvin Trial: State Requests Modification of Court’s Sentencing Memorandum, dwkcommentaries.com (July 8, 2021) (emphasis added). /

[2] Oder Denying State’s Request To Modify Sentencing Order Memorandum Opinion, State v. Chauvin, Hennepin County District Court, Court File No. 27-CR-20-12646 (July 13, 2021); Olson, Chauvin judge declines state request to revise memo about young eyewitnesses to Floyd murder, StarTribune (July 13, 2021).

 

Derek Chauvin Trial: State Requests Modification of Court’s Sentencing Opinion

On July 7, 2021, the State of Minnesota made an unusual request of Hennepin County District Court Judge Peter Cahill: revise its June 25, 2021, Sentencing Memorandum Opinion, but not its 22.5 year sentencing order. The requested change was to include the presence of children at the scene of George Floyd’s murder as an aggravating factor for sentencing.

Rationale for the Request[1]

 The State asserted the following two reasons for this request.

First, the Court said, contrary to laws and common sense,” that the children’s presence should not be an aggravating factor because they “were not forcibly held at the scene or otherwise prevented from leaving.”  However, according to the Attorney General, “The Minnesota Supreme Court has clearly stated that an aggravating factor applies when children witness criminal activity.[Emphasis in Ellison letter.]Children lack the adult capacity for decision-making, including the ability to maturely ‘walk away.’ Moreover, the law does not place the burden on a child to choose between staying—whether to stand witness or in an attempt to aid a victim—or leaving the scene of a crime. For good reason: The responsibility of shielding a child from witnessing a crime should not fall on the child. In other words, a child is akin to a victim when she perceives a horrific event—such as murder—without anything more.”

Moreover, the “State is deeply worried about the message sent by suggesting that instead of attempting to intervene in order to stop a crime—which children did in this case—children should simply walk away and ignore their moral compass. Children should never be put in this position.”

Second, “the State vehemently disagrees with the Court’s factual assertion that the demeanor the children exhibited in the video of  Mr. Floyd’s death indicates that the children were not traumatized. The children’s emotional testimony at trial—including that one of them stays awake at night and another cannot return to Cup Foods—belies that conclusion.”

Third, “the best social science research also supports modifying the opinion’s reliance on the children’s demeanor. . .. [It] ignored the facts that the children courageously confronted Mr. Chauvin and his codefendants –by pleading repeatedly for Mr. Chauvin to remove his knee from Mr. Floyd’s neck so that he could breathe, and by begging Mr. Chauvin and his codefendants to check Mr. Floyd’s pulse [and instead] relied on its observation that the children smiled or giggled at various points during the incident. But that observation is completely immaterial: Children process traumatic experiences in ways that may seem unusual to the untrained eye. Moreover, as social science research demonstrates, for humans of all ages, giggling or smiling can actually be normal responses to stressful experiences. Additionally, and particularly relevant here, research demonstrates that ‘adults view Black girls as less innocent and more adult-like that their white peers.’ This phenomenon of ‘adultification’ is unfortunately common in American society, including the criminal justice system, and has led even careful observers to discount a young Black girl’s trauma.”

Support for these references to social science research was provided in the accompanying Declaration (under Penalty of Perjury) of Sarah Yvonne Vinson, an eminently qualified Triple Board-Certified Child & Adolescent, Adult and Forensic Psychiatrist.[2]

Finally while noting the State’s “utmost respect for the Court, including tis tremendous efforts to reduce implicit bias in this trial,,” the State said the Court’s “discounting the trauma of the children who testified at trial—in an authoritative judicial opinion, no less—will only exacerbate the trauma they have suffered. The Court should correct the public record to avoid that result.”

Conclusion

 This blog previously stated its disagreement with the Court’s rejection of the presence of children as an aggravating factor for sentencing.[3]

The Court also failed to acknowledge the judgment and courage of one of the children—17 year-old- Darnella Frazier—in deciding that day to use her cell phone to make a 10-plus minute video recording of the restraint and murder of Mr. Floyd.[4]

Finally, although not relevant to the Court’s opinion, Frazier’s traumatization unfortunately was further exasperated on July 6, 2021, when her innocent uncle (Leneal Lamont Frazier, age 40,) was killed in a car crash involving a Minneapolis police vehicle that was pursuing another vehicle containing a robbery suspect. Darnella said on FACEBOOK, “MINNEAPOLIS police killed my uncle . . . Another Black man lost his life in the hands of the police. Minneapolis police [have] cost my whole family a big loss. . . today has been a day full of heartbreak and sadness.” Later she added the following clarification to that post: “”I never said the police killed him on purpose. I said it was the police’s fault … The police car is the car that killed my uncle.” She wrote that the police made a bad decision by conducting a high-speed chase through a residential neighborhood, and that bad decision “cost my uncle his life.”[5]

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[1] Letter, Minnesota Attorney General Keith Ellison to Judge Peter Cahill, State v. Chauvin, Court File No.: 27-CR-20-12646 (July 7, 2021); Xiong, Attorney General challenges judge’s characterization of  girls’ reactions at Floyd murder scene, StarTribune (July 8, 2021).

[2] Declaration of Sarah Yvonne Vinson, State v. Chauvin, Court File No.: 27-CR-20-12646 (July 7, 2021).

Click to access MCRO_27-CR-20-12646_Other-Document_2021-07-07_20210708080542.pdf

[3] See these posts to dwekcommetaries.com: Derek Chauvin Trial: Week Four (April 2, 2021); Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment,  (June 28, 2021).

[4] See these posts to dwkcommentaries.com: Witnessing (April 25, 2021); Darnella Frazier’s Continued Witnessing (May 26, 2021); More Honors for Darnella Frazier (June 12, 2021).

[5] Hyatt & Miller, Mourners block street where Minneapolis police car crashed into car during pursuit, killing innocent driver, StarTribune (July 8, 2021); Bela, Darnella Frazier says her uncle was killed by a police car that was chasing a robbery suspect, Wash. Post (July 7, 2021).

 

 

Reconsidering Third-Degree Murder Charges Against Other Ex-Policemen in George Floyd Killing 

On June 30, 2021, the Minnesota Court of Appeals reversed  Judge Cahill’s denial of the State’s motion to add a third-degree murder aiding and abetting charge against former MPD officers, J. Alexander Kueng, Thomas Lane and Tou Thao. Their trial is now scheduled for March 2022.[1]

Before looking at this Court of Appeals decision, we will examine a summary of the complicated background for this issue.

Background for Appellate Decision

“Murder in the Third Degree: in the Minnesota Statutes (section 609.195) is defined as “Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.”

The original superseding criminal complaint of June 3, 2020, against Derek Chauvin included a third-degree murder charge while not so charging the other three former officers of aiding and abetting that charge in their original complaints of June 3.[2]

On August 28, 2020, Chauvin moved to dismiss the complaint, including the third-degree murder charge. On October 21, 2020, Judge Cahill granted Chauvin’s motion to dismiss the third-degree murder charge while denying the balance of the motion. According to the Judge, such a charge can be sustained only when “the defendant’s actions . . . were not specifically directed at the particular person whose death occurred.” [3]

On February 4, 2021, the State moved for leave to reinstate the third-degree charges against the former officers. The basis for this motion was the Court of Appeals’ February 4th 2-1 decision upholding a third-degree murder charge against Mohammed Noor for the 2017 killing of an Australian woman in south Minneapolis.[4]

On February 11, Judge Cahill denied this motion to add the third-degree murder charges. According to the Judge, the majority opinion in its recent Noor case “is not persuasive in this Court’s view because it departs from the Minnesota Supreme Court’s long adherence to the no-particular person requirement embedded in the depraved mind element [of the crime].” In addition, said Judge Cahill, the dissent in the Noor case was correct.[5]

On February 22, the State appealed that decision to the Court of Appeals. On March 1 the Court of Appeals heard arguments on that appeal, and on March 5 that court reversed Judge Cahill’s decision. As a result, on March 11, Judge Cahill reinstituted the third-degree murder charge against Chauvin. The Judge said he was “duty bound” to accept the appellate court’s ruling and interpretation of the statute.[6]

Court of Appeals June 30th Decision[7]

The Court of Appeals on June 30, 2021, said that its previous decision on the third-degree murder charge in the Chauvin case requires Judge Cahill to reverse his previous denial of the charge of aiding and abetting such a crime by these three former officers and to hear additional arguments from the parties.

Judge Cahill will be duty-bound to follow this decision and order.

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[1] Xiong, Court of Appeals ruling puts third-degree murder back into play in George Floyd killing, StarTribune (July 1, 2021); Williams, Minnesota appeals court clears way for third-degree murder charge against officers in George Floyd death, The Hill (July 1, 2021).

[2] The Criminal Complaint Against Derek Chauvin Over the Death of George Floyd, dwkcommentaries.com (June 12, 2020); The Criminal Complaints Against the Other Three Policemen Involved in George Floyd’s Death, dwkcommentaries.com (June 14, 2020).

[3] Chauvin Moves To Dismiss Criminal Complaint, dwkcommentareis.com (Sept. 9, 2020); Court Sustains Most Charges in George Floyd Criminal Cases, dwkcommentaries.com (Oct. 23, 2020).

[4] Prosecution and Chauvin Dispute Adding Third-Degree Murder Charges in George Floyd Criminal Case, dwkcommentaries.com (Feb. 10, 2021); Court Denies Third-Degree Murder Charges for George Floyd Killing, dwkcommentaries.com (Feb. 12, 2021).

[5] Ibid.

[6] Comment: State Appeals Dismissal of Third-Degree Murder Charges in George Floyd Case, dwkcommentaries.com (Feb. 23, 2021); Appellate Hearing on Third-Degree Murder Charge Against Derek Chauvin, dwkcommentaries.com (Mar. 1, 2021); Court of Appeals Reverses District Court’s Refusal To Follow Precedent on Third-Degree Murder Charge Against Derek Chauvin, dwkcommentaries.com (Mar. 5, 2021); Derek Chauvin Trial: Week One, dwkcommentaries.com (Mar. 15, 2021)Thomas Lan

[7] See n.1 supra.

 

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:

  1. “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.”
  2. “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.”
  3. “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: Issues for Sentencing of Derek Chauvin 

June 25 is the scheduled date for the Hennepin County District Court hearing on the sentencing of Derek Chauvin for his conviction for second-degree and third-degree murder and second-degree manslaughter of George Floyd.

Already the State and Chauvin have submitted briefs calling for vastly different sentences. The State argued for 30 years imprisonment while Chauvin asked for time already served and probation. This blog already has opined that the State’s argument is persuasive given the court’s prior determination that there were four factors favoring upward sentencing departure and that Chauvin’s argument was ridiculous.[1]

Now we examine Chauvin’s arguments for a new trial and impeaching the jury verdict and the opposing arguments from the State.[2]

Arguments for and Against New Trial

Chauvin’s 42 pages of arguments for a new trial reiterate motions and arguments made and rejected by the court before and during trial: pretrial publicity, change of venue, continuance or new trial, sequestration of the jury, and alleged prosecutorial misconduct. The first 54 pages of the State’s June 16th Memorandum provide exacting details on why this Chauvin argument is not meritorious.

Arguments for and Against  Schwartz Hearing

The last 11 pages of Chauvin’s brief set forth alleged acts of juror misconduct that purportedly justify a hearing to investigate alleged misconduct by two jurors: Juror 96 (Lisa Christiansen), who was an alternate released from jury duty prior to the jury’s consideration of the evidence and deliberation and Juror 52 (Brandon Mitchell).

The State, however, says these claims “are a desperate attempt to escape a lawful verdict, are barred by the law, and not supported by the facts” and should be rejected. (State’s Memorandum at 55-77.)

First, this motion cannot be granted for anything Ms. Christianson did because she was an alternate and excused by the court before the jury heard any evidence and deliberated in reaching a verdict. Moreover, she was truthful in responding to defense counsel’s questions during voir dire. (State’s Memorandum at 75-77.)

Second, Juror 52 (Brandon Mitchell) did serve on the jury and after the conclusion of the trial made public statements about the trial and the jury’s deliberations. Although such statements cannot be considered by the court on such a motion, they reveal that the jury carefully followed the court’s instructions and properly considered only the evidence, that they carefully deliberated after a preliminary vote with each juror expressing why he or she came to a conclusion of guilty on all counts.

Moreover, Mitchell in his written responses to over 69 written questions by the court and nearly 45 minutes of responding to defense counsel’s questions “extensively detailed his pre-existing views on a range of issues, including a “highly favorable opinion” of Black Lives Matter, and his prior impression of the case.

Conclusion

For the foregoing reasons, this blogger believes that the court should reject Chauvin’s motions and impose a sentence of 30 years imprisonment.

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[1] See these posts to dwkcommentaries.com: Derek Chauvin Trial: Week Seven (Conviction) (April 21, 2021); Derek Chauvin Trial: Court Finds Aggravating Factors for Sentencing (May 12, 2021); Derek Chauvin Trial: Arguments About Sentencing of Chauvin (June 7, 2021).

[2] Defendant’s Notice of Motions and Post-Verdict Motions, State v.  Chauvin. Hennepin County District Court, Court File No. 27-CR-20-12646 (May 4, 2021); Memorandum of Law in Support of Defendant’s Post-Verdict Motion, State v. Chauvin. Hennepin County District Court., Court File No. 27-CR-20-12646 (June 2, 2021); State’s Memorandum in Opposition to Defendant’s Post-Verdict Motions, State v..Chauvin. Hennepin County District Court, Court File No. 27-CR-20-12646 (June 16, 2021); Forliti (AP). Prosecutors: New trial not merited for ex-cop in Floyd death, Wash. Post (June 16, 2021)

 

More Honors for Darnella Frazier

As is now widely known, on May 25, 2020, Darnella Frazier, a 17-year-old high school student happened to be at the  Minneapolis corner of 38th  and Chicago Avenue and observed Minneapolis policemen restrain a Black man on the street pavement by a police car. She had the presence of mind and courage to get out her cell phone and make a video recording of what turned out to be the last minutes of George Floyd’s life.[1]

For these actions in 2020 she received the PEN/Benenson Courage Award from PEN America. [2]

On May 25, 2021, the first anniversary of the death of Mr. Floyd, she penned a beautiful tribute to him on FACEBOOK that subsequently was movingly read on MSNBC by Caroline Randall Williams, an award-winning poet, young adult novelist, cookbook author and the Writer-in-Residence of Medicine, Health and Society at Vanderbilt University.[3]

On June 11, 2021, she received another award for her judgment and courage. This was a special Pulitzer Prize that recognized her for “courageously reporting the murder of George Floyd, a video that spurred protests against police brutality, around the world, highlighting the crucial role of citizens in journalists’ quest for truth and justice.”  In announcing this award, Mindy Marques Gonzalez, the co-chair of the Pulitzer Board, said this video was “transformative” and “jolted viewers and spurred protests against police brutality around the world.” [4]

This Pulitzer award was applauded by Roy Peter Clark, a senior scholar at the Poynter Institute and a five-time Pulitzer winner himself. He said, “”There she was, at 17, sort of witnessing an injustice and she stood there in the face of threats and captured that video. It would be hard to select, even from the work of professional journalists over recent years or decades, a 10-minute video that had as profound an impact as this young woman’s video did.”

On June 24, 2021, Ms.Frazier will receive the Human Rights Defender Award from the Minneapolis-based Advocates for Human Rights. The initial announcement of this award stated she “bravely documented the murder of George Floyd. Her quick thinking sparked a worldwide reckoning with systemic racism and police violence.”[5]

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[1] Witnessing, dwkcommentaries.com (April 26, 2021).

[2] Ibid.

[3] Darnella Frazier’s Continued Witnessing, dwkcommentaries.com (May 26, 2021).

[4] Columbia University, 2021 Pulitzer Prize Winners (June 11, 2021); Forliti (AP),Teen who recorded Floyd’s arrest, death, wins Pulitzer nod, Wash. Post (June 11, 2021); Hill (AP), Pulitzers honor coronavirus pandemic, US protest coverage, Wash. Post (June 11, 2021); Izadi, Darnella Frazier, the teen who filmed George Floyd’s murder, awarded a citation, Wash. Post (June 11, 2021).

[5] Advocates for Human Rights, 2021 Virtual Human Rights Awards Dinner.