Recent Developments in George Floyd Criminal Cases

Since the filing of criminal charges against four former Minneapolis police officers over the May 25th death of George Floyd there have been many submissions to the court, pretrial hearings and court orders that have been summarized in previous posts.[1]  Now we look at the developments in the cases since November 18.

Kueng’s Supplemental Offer of Proof Regarding Floyd’s 5/6/19 Incident [2]

On November 23, Defendant Kueng submitted records of his attorney’s interviews of four other police officers involved in the May 6, 2019 Minneapolis arrest of Mr. Floyd as an offer of proof to admit evidence of that arrest at trial.

State’s Disclosure of Expert Witnesses [3]

 On November 24, the State of Minnesota disclosed the following potential expert witnesses and reports:

  • Michael Berkow;
  • John J. Ryan,
  • William Louis Manion, M.D.
  • Glenn G. Hardin, MPH, DABFT
  • William Louis Manion, M.D.,
  • S. Charles Schulz, II,
  • Michael M. Baden, M.D.,
  • Theodore C. Chan, M.D.,
  • Sellman Charles Schulz, II, M.D.,
  • Lawson F. Bernstein, Jr., M.D.,
  • Joshua O. Zimmerman,
  • Andrew M. Baker, M.D.,
  • Theodore Chan,
  • Michael M. Baden, M.D.

State’s Arguments Against Livestreaming of Trial [4]

On November 25, the State moved for reconsideration of the order for audio and video coverage of the trial. It made the following points:

  • “The Minnesota General Rules of Practice . . . permit audio or visual recordings of criminal trials, but only if the State and Defendants have consented ‘in writing” or “on the record prior’ to trial.” But at least the State had not so consented.
  • “Moreover, even when the parties consent, the Rules prohibit video and audio recordings of ‘any witness who objects thereto in writing or on the record before testifying.’”
  • Neither the U.S. nor the Minnesota Constitution “requires such recordings.” And the “Sixth Amendment’s core purpose—transparency—can readily be achieved with overflow rooms and closed-circuit cameras. “
  • “[R]ecording and publicly broadcasting witness testimony without consent will cause witnesses to lose their privacy and suffer possible threats of intimidation, and may make it less likely that some witnesses will come forward and testify at trial. “

Defendant Thao Asks for Trial Delay & Sanctions on Prosecution [5]

 On December 11, Defendant Tou Thao’s attorney filed a motion to delay the trial from March 8 to July 5 and for sanctions against the prosecution for its alleged delay in sharing important evidence with the defense.

The motion asserted that the Court’s order of June 30 required the prosecution to share all evidence by August 14, but the prosecution has delayed sharing more than 15,000 pages of evidence over eight separate instances. Most significant was the prosecution’s not providing until October 28 an account of a July 8 interview of Hennepin County Chief Medical Examiner Andrew Baker.. The defense attorney also asked the Court to order the State to pay for the defense attorney’s fees and costs caused by the delays and postpone the defense’s deadline to disclose their expert witnesses.

Dr. Andrew Baker in that July 8 interview described “the mechanism of death as Floyd’s heart and lungs stopping due to the combined effects of his health problems as well as the exertion and restraint involved in Floyd’s interaction with police prior to being on the ground.”  (Emphasis in the brief.)

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[1]  See List of Posts to dwkcommentaries—Topical: George Floyd Killing.

[2]  Defendant’s Supplemental Offer of Proof in Support of Motion To Admit Floyd’s May 6, 2019 Incident, State v. Kueng, Court File No. 27-CR-20-12933 (Hennepin County District Court Nov. 23, 2020).

[3] Supplemental Prosecution Disclosure Pursuant to Rule 9.01, Subd. 1, State v. Chauvin, Court File No. 27-CR-20-12646 (Nov. 24. 2020).

[4] State’s Motion for Reconsideration of Order Allowing Audio and Video Coverage of Trial, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County District Court Nov. 25, 2020);  Xiong, Prosecutors challenge judge’s order allowing livestreamng of George Floyd trial, arguing it could harm testimony, StarTribune (Nov. 30, 3030).

[5] Motion for Sanctions and Hearing Regarding Discovery Violations by the State, State v. Thao, Court File No 27-CR-20-12949 (Hennepin County District Court Dec. 11, 2020); Exhibit 1 to said motion (FBI Memo of Interview of Andrew Baker, MD (09/01/20)); Exhibit 2 to said Motion (Letter, Aug. 7, 2020, Office of Hennepin County Attorney to Assistant U.S. Attorney Jeffrey Paulsen); Defense attorney: Prosecutors in George Floyd case should be sanctioned for delaying sharing evidence, StarTribune (Dec. 11, 2020).

Additional Reasons for Loving Dave Brubeck’s Music  

After publishing the post about Dave Brubeck and other jazz musicians, I remembered that my church, Minneapolis’ Westminster Presbyterian, has used Brubeck music in at least two of our worship services. These are additional reasons for my love of his music.

On September 2, 2012, our church organist, Melanie Ohnstad, played an organ prelude “Swing Five,” which uses the rhythms of Brubeck’s “Take Five” and which was composed by a contemporary German composer, Johannes Matthias Michel.[1]

On December 6, 2015, Westminster’s church choir sang “God’s Love Made Visible,” a sacred jazz piece in 5/4 time by Brubeck. The words by his late wife, Iola Brubeck, started with the religious meaning of Christmas:

  • “God’s love made visible! Incomprehensible! He is invincible! His love shall reign! From love so bountiful, blessings uncountable made death surmountable! His love shall reign! Joyfully pray for peace and good will! All of man’s yearning He will fulfill. Praise him for ev’ry day! Open your hearts and pray. His love shall reign!”

After an interlude of words about the secular activities of the season, the music returned to the religious theme:

  • “ God gave His Son to us to dwell as one of us. His blessing unto us! His love shall reign! To Him all honor bring, heaven and earth will sing, praising our Lord and King!
  • His love shall reign! Open all doors this day of His birth, men of good will inherit the earth.
  • His star will always be guiding humanity through eternity!
  • His love shall reign!”

This choral piece is from a longer sacred work by Brubeck: “Fiesta de la Posada” (Festival of the Inn), which Brubeck said was an outgrowth of his absorbing and observing “Mexican folk music all my life.” That “ethnic music reflects those qualities I most admire in people… dignity in moments of tragedy, infectious high spirits in moments of joy, and an unshakeable religious faith made evident in a strong sense of one’s own worth and a deep respect for the shared values of one’s own group — family, church, village. These qualities, I think, are universal to people with a strong communal sense” that he “tried to capture in the simple retelling of the Christmas story” in “fiesta de la Posada.”

I also discovered that Brubeck had some Presbyterian connections and had played this piece and others at the national meeting (General Assembly of our denomination, the Presbyterian Church (U.S.A.) ) in 1997.[2]

Thank you, Dave Brubeck, for these contributions to works for religious communities.

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[1] Jazzy Music at Minneapolis’ Westminster Presbyterian Church, dwkcommentaries.com (Sept. 5, 2012).)

[2] Brubeck, A Note from the Composer, davebrubeck.com; Buchanan, A tribute to Presbyterian-friendly Dave Brubeck, PCUSA News (Dec. 14, 2012.

Giving Thanks for Jazz Musicians

I gave thanks to the many jazz musicians who have enriched my life over the years. Here are comments about those who have been most important for me.

Herbie Hancock[1]

As a student at Grinnell College, 1957-61, I started to become acquainted with jazz. This introduction was provided by a fellow Grinnell student, Herbie Hancock, who organized several jazz combos that gave concerts during his time at the College. This period is discussed in his memoir, Possibilities.

My sophomore year, Hancock frequently came to the floor of my residence hall to spend time listening to Miles Davis records on the high-fi of my classmate, John Scott, while John played along on his trumpet. The next year on campus John was the trumpeter in the Herbie Hancock Quintet, which played three pieces by John and another three that the two of them together had composed. At the time, Herbie regarded this as the best group he had formed at the College.

Immediately after leaving Grinnell, Herbie started a career as a professional jazz artist that has proved to be immensely successful and influential, and I started to collect many of his CDs. Now I have at least the following in my collection: Taki’ Off (1962); Maiden Voyage (1965); Chick Corea, Herbie Hancock, Keith Jarrett, McCoy Tyner (1976); The Piano (1979); Quartet (with Wynton Marsalis, Ron Carter & Tony Williams) (1982); A Tribute to Miles (1994); Herbie Hancock Quartet Live (1994); The New Standard (1996); Gershwin’s World (1998); Directions in Music (with Michael Brecker & Roy Hargrove) (2002); Possibilities (2005); River: the joni letters (2007); and The Imagine Project (2010).

Herbie’s career has gone through many different phases, and I have to confess that his earliest phase with Taki’ Off and Maiden Voyage is my favorite. In recent years I have attended his concerts at the Minnesota Zoo and the University of Arizona in Tucson, and although the music is still amazing, I do not like this style as well.

Hancock has received many well-deserved awards, including the following: UNESCO Goodwill Ambassador (2011); Kennedy Center Honors Award (2013); Harvard University’s Charles Elliot Norton Professor of Poetry (2014), when he gave the Norton Lecture, “The Ethics of Jazz;” and honorary degrees from Washington University in St. Louis (2015) and Rensselaer Polytechnic Institute (2018).

Miles Davis[2]

In 1963, only a few years after leaving Grinnell, Herbie joined the Miles Davis combo where he remained until 1968, and I started to learn about, and like, Miles’ music. My favorite Miles’ album, Kind of Blue, was recorded in 1959 before Herbie joined the combo; it features saxophonists John Coltrane and Julian “Cannonball” Adderley, pianist Bill Evans, bassist Paul Chambers and drummer Jimmy Cobb. This album “has been regarded by many critics as the greatest jazz record, Davis’s masterpiece, and one of the best albums of all time. Its influence on music, including jazz, rock and classical genres, has led writers to also deem it one of the most influential albums ever recorded.” And it is one of the best-selling jazz records of all time.

Dave Brubeck[3]

Dave Brubeck was popular when I was in college although I do not recall his group playing at Grinnell during those years.

According to John Edward Hasse, curator emeritus of American music at the Smithsonian Institution’s National Museum of American History, “In the 1950s, it seemed that Brubeck was everywhere—on college campuses and world stages, on records, radio and TV—becoming a household name. He forged a singular trail in American culture as a musical magnet, popular pianist, and—his supreme calling—composer. . . . In 1958, his quartet jelled as the now-classic foursome—the tightest of his career—with the supremely lyrical alto saxophonist Paul Desmond, the versatile drummer Joe Morello, and the solid bassist Eugene Wright.” (One of the reasons I especially liked Brubeck’s group was Desmond’s artistry on the saxophone, which I had played in my high-school band.)

Hasse continues. Before a “1958 concert in Istanbul, Brubeck encountered a folk dance in an unfamiliar rhythm. ‘I was on my way to a radio station to be interviewed in Turkey,” said Brubeck . . . . There were street musicians playing in 9/8.’ That unfamiliar beat inspired him to compose Blue Rondo à la Turk around the rhythm. His recording of it works magically, in part because of a contrast: Brubeck’s firm piano playing grounds the performance, while Desmond’s ethereal lines lift it skyward.” (This is another of my favorites.)

Brubeck’s Time Out album jacket says, “Blue Rondo A La Turk plunges straight into the most jazz-remote time signature, 9/8, grouped not in the usual form (3-3-3) but 2-2-2-3. When the gusty opening section gives way to a more familiar jazz beat, the three eighth-notes have become equivalent to one quarter-note, and an alternating 9/8-4/4 time leads into a fine solo by Paul Desmond. Dave follows, with a characteristically neat transition into the heavy block chords which are a familiar facet of his style, and before long Rondo A La Turk is a stamping, shouting blues.. Later the tension is dropped deliberately for Paul’s re-entry, and for the alternate double-bars of 9- and 4- time, which heralds the returning theme. The whole piece is in classical rondo form.”

My other favorite tune on this album isTake Five,” which is described in the jacket as a “Desmond composition in 5-4, one of the most defiant time signatures in all music, for performer and listener alike. Conscious of how easily the listener can lose his way in a quintuple rhythm, Dave plays a constant vamp figure throughout, maintaining it even under Joe Morello’s drum solo. . . . “Take Five really swings.”

To the surprise of all, the Time Out album “became a bestseller, earning a gold record, and spawning a radio hit with Desmond’s Take Five.” As Hasse says, this was the “first jazz album to sell one million copies, Time Out was a breakthrough—all-new material in meters that challenged listeners.”

More generally, Brubeck by “eschewing the prevailing bebop style, . . . developed his own piano sound, marked by block chords, a solid touch, polyrhythms, polytonality (harmonies in two different keys at the same time), and experiment. His music and career sparked frequent controversy—over his classicism, sense of swing, and commercial success. Yet, as a warm and gracious performer, he made many friends for modern jazz.”

The Modern Jazz Quartet[4]

 Another favorite jazz group of mine is The Modern Jazz Quartet. I have the group’s CD’s: La Ronde Suite (2001);; Paul Desmond with the Modern Jazz Quartet in Concert at Town Hall, N.Y.C. (1990); and Modern Jazz Quartet for Ellington (1988).

Keith Jarrett[5]

The piano playing of Keith Jarrett also has appealed to me, and I was shocked and saddened recently to learn that his last concert was in February 2017 at Carnegie Hall. That concert was previewed by the New York Times: “The regnant solo piano improviser of the last 50 years, Mr. Jarrett recently released ‘A Multitude of Angels,’ a set of four unaccompanied concert recordings. With a lapidary touch, Mr. Jarrett ranges from Romantic pastiche to Coplandesque major harmonies to runs of boisterous swing, often in one free improvisation. He is known for unsportsmanlike behavior on the bandstand (coughs from the audience have led him to stop a concert halfway through). But his rare concerts are worth attending just the same.”

That 2017 concert was opened by Jarrett’s “indignant speech on the political situation [the recent inauguration of Donald Trump] and . . .  relentless [political] commentary throughout the concert. He ended by thanking the audience for bringing him to tears.”

His next concerts were cancelled for “unspecified health reasons” and thereafter he has not had any other concerts. Only this October did he reveal that he had suffered strokes in February and May 2018 that had paralyzed him and left him unable to play the piano. Thus, he is likely never to be able to play the piano again. As he recently told a journalist, “But when I hear two-handed piano music, it’s very frustrating, in a physical way. If I even hear Schubert, or something played softly, that’s enough for me. Because I know that I couldn’t do that. And I’m not expected to recover that. The most I’m expected to recover in my left hand is possibly the ability to hold a cup in it. So it’s not a ‘shoot the piano player’ thing. It’s: I already got shot.”

Jarrett’s recording of The Koln Concert in 1975 in Koln, Germany, is “a sonorous, mesmerizing landmark that still stands as one of the best-selling solo piano albums ever made.”

In 1998 Jarrett rejoined DeJohnette and the virtuoso bassist Gary Peacock for a concert, the recording of which was released a decade later as After the Fall that captures a spirit of joyous reunion.

Other Jazz Favorites

 Other jazz favorites of mine include Gary Burton (vibraphone), Chick Corea (piano), Duke Ellington (composer, arranger, jazz orchestra leader, pianist), Bill Frissell (guitar), Nachito Herrera (Cuban pianist, combo leader and friend), Stan Kenton (pianist, composer, arranger and band leader), Gonzalo Rubalcabo (Cuban pianist) and Omar Sosa (Cuban pianist).

Conclusion

A prior post mentioned my pleasure at listening to pieces by Vivaldi and Rubinstein on SeriusXM’s “Symphony Hall” as I was driving on errands. My other favorite channel on SeriusXM for such excursions is “Real Jazz” and when it plays my favorite Hancock and Brubeck tunes, I love to hum along and even match their unusual rhythms.

Thank you to all of the jazz musicians who have make this possible. I also must express my concern for all the orchestral and jazz musicians who have been and still are being prevented by the COVID-19 pandemic from public performances (except for smaller group, usually free, virtual concerts) and from earning income to support themselves and their loved ones. All lovers of these forms of music should include them in charitable giving.

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[1] ‘Cool’ Five Plays Oldies, Moderns, [Grinnell] Scarlett & Black at 3 (April 22, 1960); Hancock, Possibilities a 24-29, 40, 72, 120, 146   (Viking Books 2014); Herbie Hancock [Biography], Herbie Hancock Institute of Jazz; Herbie Hancock, Wikipedia; Herbie Hancock discography, Wikipedia; Wendell, Experiencing Herbie Hancock (Rowman & Littlefield 2018).

[2] Miles Davis, Wikipedia; Kind of Blue, Wikipedia; Miles Davis Discography, Wikipedia.

[3] Hasse, Dave Brubeck, Beyond ‘Take Five,’ W.S.J. (Nov. 28, 2020); Clark, Dave Brubeck: A Life in Time (DeCapo Press 2020).

[4] Modern Jazz Quartet, Wikipedia. Modern Jazz Quartet Albums, discogs.org.

[5] Chinen, Keith Jarrett Confronts a Future Without the Piano, N.Y. Times (Oct. 21, 2020); Pop, Rock and Jazz in NYC This Week, N.Y. Times (Feb. 8, 2017); Chinen, Keith Jarrett Commemorates a Great Night in Newark, and a Band’s Legacy, on ‘After the Fall,’ WBGO.org (Feb. 28, 2028). I still have the following Keith Jarrett CD’s: Works (ECM 1985); Bye Bye Blackbird (1991)(with Gary Peacock & Jack DeJohnnette); La Scala (1995); The Melody At Night With You (1998); Inside Out (2001)(with Gary Peacock & Jack DeJohnnette); The Out-of-Towners (2001)(with Gary Peacock & Jack DeJohnette); Radiance (2002); Jasmine (2007)(with Charlie Haden).

Another Perspective on the Mayflower Compact and the Pilgrims

A previous post provided a positive view of the 400th anniversary of the Mayflower Compact and the Pilgrims who wrote and signed it. A vastly different perspective on these topics has been provided by Joshua Zeitz, an American historian and contributing editor of Politico.[1]

He starts with a positive note. “The Pilgrims wrote and  “signed the Mayflower Compact, which arguably planted the first democratic seeds in New World. The same Pilgrims . . . transported a strain of Christian millennialism to America that influenced the development of political culture throughout the United States.”

However, Zeitz says their Colony of Plymouth “was a small, struggling outpost that never achieved the prosperity or influence of its close cousin, the Massachusetts Bay Colony, settled 10 years later by non-separatist Puritans. . . . Puritanism—both in Plymouth and Massachusetts Bay—fell into a state of decline within a generation of each colony’s founding. Ultimately, the political and religious culture the Pilgrims and Puritans built had little to do with the nation we became—it shaped neither the republican revolution against Parliament and Crown in the 18th century nor America’s evolution into a diverse and boisterous democracy in the 19th century.”

“From the start, the Puritan project faced steep challenges. A large number of Mayflower passengers were ‘strangers’—servants or craftsmen who were necessary to the settlement but did not share in the separatists’ religious faith. . . . Local conditions were also trying. . . . Plymouth remained a small and relatively poorer society of fishermen and small farmers.”

Moreover, “by the 1660s large numbers of residents of both colonies were not baptized church members. . . . Whereas upward of 80 percent of Plymouth and Massachusetts settlers belonged to churches in the 1640s, by the 1670s that portion had fallen to as low as 30 percent.” In other words, “[f]ar from laying the foundation of American political and religious culture, the Puritan settlers, separatists and non-separatists alike, built an inward, particular religious community that frayed within three generations of their arrival in the New World.”

Zeitz  concludes by saying that there has been little public note of “this year’s 400th anniversary of the [Mayflower Compact and the] Plymouth landing, in contrast to the [current] spirited debate over [the introduction of slavery in the Virginia colony in] 1619,[2][ and that this contrast] reflects the right priorities. We still grapple with the legacy of slavery in ways both profound and worrying, and the impulse to claim the mantle of ‘true Americans’ hasn’t left our politics. But we can be thankful that the Pilgrim’s world of ‘invisible saints’ and unregenerate sinners, of closed communities and neo-theocracy, has little to do with the America we know, nor has it for a very long time.”

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[1] Zeitz, How America Outgrew the Pilgrims, Politico (Nov. 25, 2020).

[2] See these posts to dwkcommentaries.com: The 1619 Project Commemorates the Arrival of Slavery in the U.S. (Oct. 20, 2019); Prominent Historians and New York Times Officials’ Comments About the 1619 Project (Aug. 12, 2020); Senator Cotton Continues Criticism of the 1619 Project, (Aug. 10, 2020); Historian Wilentz’ Response to Senator Tom Cotton on the Issue of Slavery (Aug. 11, 2020); Evaluation of the Report of the U.S. Commission on Unalienable Rights and Its Endorsement by Secretary Pompeo, (Aug. 3, 2020).

 

Giving Thanks for Composers and Musicians 

This morning as I was driving to do errands, I had my car radio tuned to SiriusXM’s “Symphony Hall” and heard recorded excerpts of the beautiful Concerto No. 5 for violin, strings and figured bass in C minor by Antonio Vivaldi, the  Italian composer, violinist, impresario and Roman Catholic priest (1678-1741), and Piano Concerto No. 4 by Anton Rubinstein, the Russian composer and pianist (1829-1894). Unfortunately because I was driving I was unable to get the names of the musicians, and searching the SeriusXM website did not provide their names. (If anyone reading this post has those names or corrections to the names of the pieces, please provide them in comments to this post.)

Nevertheless, this listening prompted me to express thanks to myself for the gifts of composers creating beautiful music that was still enriching our lives many years after their mortal existence and the gifts of musicians playing that music for us today through the gifts of the many individuals and companies that recorded, preserved and presented that music today.

 

 

 

 

 

 

 

 

 

Mayflower Compact’s 400th Anniversary  

On November 21, 1620, the  “Agreement Between the Settlers of New Plymouth” (now called the Mayflower Compact), was signed aboard the Mayflower ship by its 41 male passengers while the ship was anchored in Provincetown Harbor within the hook at the northern tip of Cape Cod.[1]

Among the signers of the Compact were John Carver, the main author of the Compact, its first signer and the subsequent first Governor of the Plymouth Colony; William Bradford, the second signer of the Compact and a subsequent Governor of the Colony; Myles Standish, who became the First Commander of the Colony; and William Brewster, who became Senior Elder of the Colony.

The Compact was the first governing document of Plymouth Colony  for the passengers of the Mayflower, who were separatist Puritans trying to purify the Church of England of certain Roman Catholic practices along with some adventurers and tradesmen. The Puritans were fleeing from religious persecution by King James I of England.

Here is the text of the Compact:

  • “IN THE NAME OF GOD, AMEN. We, whose names are underwritten, the Loyal Subjects of our dread Sovereign Lord King James, by the Grace of God, of Great BritainFrance, and Ireland, King, Defender of the Faith, &c. Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honour of our King and Country, a Voyage to plant the first Colony in the northern Parts of Virginia; Do by these Presents, solemnly and mutually, in the Presence of God and one another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid: And by Virtue hereof do enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions, and Officers, from time to time, as shall be thought most meet and convenient for the general Good of the Colony; unto which we promise all due Submission and Obedience. IN WITNESSwhereof we have hereunto subscribed our names at Cape-Cod the eleventh of November, in the Reign of our Sovereign Lord King James, of EnglandFrance, and Ireland, the eighteenth, and of Scotland the fifty-fourth, Anno Domini; 1620.”

This document evidences their determination to establish their own government, while still affirming their allegiance to the Crown of England. Thus, the Compact was based simultaneously upon a majoritarian model and the settlers’ allegiance to the king. It was in essence a social contract in which the settlers consented to follow the community’s rules and regulations for the sake of order and survival.

Here is a commentary on the Compact by John G. Turner, Professor of Religious Studies at George Mason University and author of “They Knew they Were Pilgrims: Plymouth Colony and the Contest for American Liberty” (Yale Univ. Press,; New Haven, CT.   2020)

Turner’s Commentary[2]

 “In November 1620, the Mayflower completed its voyage across the Atlantic. Before its weary passengers walked on American soil for the first time, 41 men signed their names to a simple agreement. They declared their loyalty to King James and formed themselves into a ‘body politic.’ They promised, among other things, ‘all due submission and obedience’ to the laws and offices they would enact to govern themselves. Then the passengers went ashore, explored Cape Cod and soon established a settlement at Plymouth.”

“For much of American history, the Mayflower Compact—as it came to be called—has been considered a foundational document. John Quincy Adams praised it as the ‘original social compact,’ an agreement that eventually had given birth to a nation. ‘In the cabin of the Mayflower,’ declared the 19th-century historian George Bancroft, ‘humanity recovered its rights, and instituted government on the basis of ‘equal laws’ enacted by all the people for ‘the general good.’ The Pilgrims, as the Mayflower passengers had become known by this point, gained renown for their dual commitment to religious and political liberty.”

“In recent decades, the Pilgrims and their compact have lost some of their luster. Since 1970, Native Americans and their supporters have held a National Day of Mourning in Plymouth each November. They see the Mayflower crossing not as a stroke for liberty but as the commencement of conquest and dispossession. Meanwhile, some Americans train their gaze on other origin stories, such as the arrival of African slaves in Virginia [in 1619].”

“What meaning, then, does the Mayflower Compact have for Americans in 2020? Setting aside the hyperbole of Pilgrim venerators past, it remains a landmark worthy of commemoration.”

“The agreement aboard the Mayflower was terse out of necessity. Pilgrim leaders only drafted it after their ship sailed off course, missing their intended destination somewhere near the mouth of the Hudson River. Nothing authorized the Pilgrims to form a government farther north, in New England, and the uncertainty over this stoked unrest. Some of the passengers made ‘mutinous speeches’ and intended to ‘use their own liberty’ when they left the ship, according to the account of William Bradford, later elected the colony’s second governor. The compact tamped down this brewing mutiny.”

“Given these circumstances, the Mayflower Compact was not a grand statement of political principles. There’s nothing in it like ‘when in the course of human events’ or ‘life, liberty, and the pursuit of happiness.’ It was an agreement to work together, not a constitution or bill of rights. The agreement also said little about religion, only that the colonists undertook their work ‘for the glory of God, and advancement of the Christian faith, and honor of our King and Country.’”

“Yet while some of the language was mere boilerplate, other portions contained more profound ideas. When the Pilgrims formed their ‘body politic,’ they referred to it as a ‘covenant.’ The notion was congruent with their religious principles. The majority of the Pilgrims were separatists, men and women who had withdrawn from the Church of England. They had then ‘joined themselves (by a covenant of the Lord) into a church estate,’ promising to ‘walk in all [God’s] ways…whatsoever it should cost them,’ according to Bradford. These actions were illegal. In the face of persecution, many of the future Mayflower passengers fled their homes and took refuge in the Dutch city of Leiden. For the separatists, it was essential that Christians retained the liberty to choose their own church leaders. John Robinson, their minister in Leiden, explained that their church government was ‘after a sort popular, and democratic.’”

“That also describes the political covenant fashioned aboard the Mayflower. The compact affirmed that those who belonged to the ‘body politic’ held the authority to ‘enact, constitute, and frame…just and equal laws, ordinances, acts, constitutions, and offices.’ In other words, the legitimacy of laws and political offices rested on the consent of the people. Those laws, moreover, had to be ‘just and equal.’”

“The principles of consent and equity harked back to Magna Carta, but as of the early 1600s most English politicians and philosophers believed that only the propertied elite possessed these bulwarks against arbitrary rule. The Mayflower Compact, by contrast, was shockingly broad. Most of the adult men on the ship signed it, servants alongside their masters. Certainly, we could focus on those excluded, such as the women on board. In the years ahead, most of those who lived in Plymouth Colony—women, Natives, African slaves and many religious dissenters—did not have a say in framing laws or choosing political leaders. By the standards of its day, though, the compact was radically inclusive; the colony’s leaders felt compelled to assure their investors that they hadn’t given women and children the right to vote.”

“After signing the compact, the passengers put its principles into practice. They chose John Carver as their governor ‘for that year.’ The election was a stark contrast with the politics of other early English colonies. Virginia, for instance, had a representative assembly, but company officers back in England appointed the colony’s governor and council.”

“Along with nearly half of the Pilgrims, Carver died during the colony’s first winter. The survivors selected Bradford as his replacement. Thereafter, they held annual elections for governor and other high offices.”

“The compact remained important to the settlers of Plymouth Colony, or at least to those men with voting rights. When they assembled 16 years later to revise the colony’s laws, they began by having the compact read aloud. They affirmed that laws and taxes could only be imposed on them ‘by consent according to the free liberties of the state and kingdom of England.’ Accordingly, settlers objected when their own magistrates empowered courts to levy certain taxes. They objected when a crown-appointed governor of a reorganized New England imposed taxes on them without their consent. Later generations of Americans would distill these complaints into the clarion cry of ‘no taxation without representation.’”

“The Pilgrims . . . contributions merit a more serious examination. Despite its brevity, and despite the blind spots of those who signed it, the Mayflower Compact established a government that lasted for 70 years. That was no mean feat by 17th-century standards.”

“The basic principles of the Mayflower Compact still resonate with the expanded American body politic of the 21st century. Men and women owe their obedience to laws and leaders, but only when they fairly participate in their formation and election. As Martin Luther King Jr. declared in his ‘Letter from Birmingham Jail’ in 1963, ‘An unjust law is a code inflicted upon a minority which that minority had no part in enacting or creating because they did not have the unhampered right to vote.’ Many of our political arguments—over the Electoral College, redistricting, the Supreme Court—hinge on exactly what constitutes democratic consent.”

“The Mayflower Pilgrims set a powerful example. But forget about their idea of annual elections. Given the anxieties and rancor that accompany American presidential campaigns, we can leave that particular 17th-century practice to the history books.

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[1] Mayflower Compact, Wikipedia; Puritans, Wikipedia; Jacoby, How the Mayflower compact sowed the seeds of American Democracy, Boston Globe (Nov. 12, 2017); Shribman, Review: The Pilgrims’ Progress, W.S.J. (Nov. 21, 2017); Wood, America wasn’t founded on slavery in 1619—but on Pilgrims’ ideals written in 1620, N.Y. Post (Nov. 7, 2020); Freeman, ‘The Foundation Stone of American Democracy,’ W.S.J. (Nov. 12, 2000); Wood, Pilgrims’ protest: Mayflower descendants defend their ancestors—and the history of America, N.Y. Post (Nov. 21, 2020); Anderson, 400th anniversary of the Mayflower Compact signing is today, Boston Globe (Nov. 21, 2020).

[2] Turner, The Mayflower Compact 400 Years Later, W.S.J. (Nov. 21, 2020.

 

 

 

 

Giving Thanks for Refugees and Other Immigrants 

On Thanksgiving Day 2020 I give thanks for the courage and fortitude of immigrants in my own family and of refugees and other immigrants in the U.S..

Personal Ancestral Immigrants

My earliest immigrant ancestor, to my knowledge, was William Brown (my seventh maternal great-grandfather), who left England as a young boy before 1686 to come to the Massachusetts Bay Colony, eventually settling in Leicester, MA, where he was one of its early settlers and officer of the town in various capacities. [1]

His grandson (my fifth maternal great-grandfather) was Perley Brown, who was born on May 23, 1737 in Leicester, MA, where later he was a Minuteman and then fought for the colonists in the American Revolutionary War at the Battle of Bunker Hill and was killed in the Battle of White Plains, NY under the command of General George Washington.[2]

My first maternal great-grandparents, Sven Peter Johnson and Johanna Christina Magnusson (Johnson), were born and married in Sweden and emigrated to the U.S. sometime before 1881, when their daughter (my maternal grandmother), Jennie Olivia Johnson (Brown), was born on February 28, 1881, in Ottumwa, Iowa.[3]

My paternal first great-grandfather, Johann N. Kroehnke (John Krohnke) was born on November 26, 1839 in Holstein, Prussia and emigrated to the U.S. circa 1867 and denounced Allegiance to the King of Prussia (William I?)  when he applied for U.S. citizenship in Davenport, Iowa on October 9, 1867 and received his U.S. naturalization papers on March 7, 1871. He settled in Benton County, Iowa, where he met Elizabeth Heyer, who was born October 13, 1847 in Krofdorf, Prussia?, but the dates of her arrival in the U.S. and obtaining U.S. citizenship are unknown. The two of them were married on December 26, 1871 in that same Iowa county. Thus, she is my first paternal great-grandmother. [4]

To determine whether there are additional immigrants in my family tree, I need the assistance of Henry Louis Gates, Jr.[5]

Refugees and Other Immigrants

I also give thanks for the courage and fortitude of the millions of refugees and other immigrants who have come to the U.S. and who have become U.S. citizens, a few of whom as a pro bono lawyer I helped obtain asylum as their first step for obtaining U.S. citizenship. I thank them for helping me learn about their personal histories and later introducing me to the moving experience of U.S. naturalization ceremonies, when they obtained their U.S. citizenship. (I also was the pro bono attorney for an Afghan man for his interview for U.S citizenship.)[6]

One such ceremony was in Minnesota in February 2016 when U.S. District Court Judge Donovan Frank before swearing in the new citizens, said, ““We are a better country now than we were five minutes ago. We are better with you than without you.”  The Judge  added that three of his five daughters were naturalized citizens.[7]

Ed Collins of Wilmington, Delaware recently wrote about his attending such a ceremony 35 years ago at San Francisco’s Masonic Temple at the invitation of a friend from college. Collins said he “was stunned upon arrival to see around 150 applicants and 300 or so friends and relatives in the auditorium. A judge led the ceremony supported by a military color guard and a small military band. The judge spoke eloquently about the duties of citizenship as well as its privileges. All joined in lustily singing a number of patriotic songs. Finally, the judge led the applicants in swearing allegiance to the U.S. and then pronounced them citizens of the U.S.”[8]

Collins added, “An amazing roar of cheering, applause, laughing and crying swept the room. I have never seen such a large display of emotion and total joy. That moment led me to understand the value that these good people placed on U.S. citizenship. I urge every American to attend a naturalization ceremony at least once. You won’t look upon U.S. citizenship the same way again, and you won’t take your citizenship for granted.”

Even more inspiring was the December 2015 naturalization ceremony at Washington, D.C.’s Rotunda of the National Archives Museum, where the original Constitution, Declaration of Independence and Bill of Rights are permanently displayed on the 224th anniversary of the ratification of the Bill of Rights. The welcome of the new citizens was given by President Obama. Here are some of his remarks that day:[9]

  • “To my fellow Americans, our newest citizens. You are men and women from more than 25 countries, from Brazil to Uganda, from Iraq to the Philippines.  You may come from teeming cities or rural villages.  You don’t look alike.  You don’t worship the same way.  But here, surrounded by the very documents whose values bind us together as one people, you’ve raised your hand and sworn a sacred oath.  I’m proud to be among the first to greet you as “my fellow Americans.”
  • “Just about every nation in the world, to some extent, admits immigrants.  But there’s something unique about America.  We don’t simply welcome new immigrants, we don’t simply welcome new arrivals — we are born of immigrants.  That is who we are.  Immigration is our origin story.  And for more than two centuries, it’s remained at the core of our national character; it’s our oldest tradition.  It’s who we are.  It’s part of what makes us exceptional.”
  • “And perhaps, like some of you, these new arrivals might have had some moments of doubt, wondering if they had made a mistake in leaving everything and everyone they ever knew behind.  So life in America was not always easy.  It wasn’t always easy for new immigrants.  Certainly it wasn’t easy for those of African heritage who had not come here voluntarily, and yet in their own way were immigrants themselves.  There was discrimination and hardship and poverty.  But, like you, they no doubt found inspiration in all those who had come before them.  And they were able to muster faith that, here in America, they might build a better life and give their children something more.”
  • “We can never say it often or loudly enough:  Immigrants and refugees revitalize and renew America.  Immigrants like you are more likely to start your own business.  Many of the Fortune 500 companies in this country were founded by immigrants or their children.  Many of the tech startups in Silicon Valley have at least one immigrant founder.”
  • “We celebrate this history, this heritage, as an immigrant nation.  And we are strong enough to acknowledge, as painful as it may be, that we haven’t always lived up to our own ideals.  We haven’t always lived up to these documents.”
  • “And the biggest irony of course is that those who betrayed these values were themselves the children of immigrants.  How quickly we forget.  One generation passes, two generation passes, and suddenly we don’t remember where we came from.  And we suggest that somehow there is ‘us’ and there is ‘them,’ not remembering we used to be ‘them.’”
  • “The truth is, being an American is hard.  Being part of a democratic government is hard.  Being a citizen is hard.  It is a challenge.  It’s supposed to be.  There’s no respite from our ideals.  All of us are called to live up to our expectations for ourselves — not just when it’s convenient, but when it’s inconvenient.  When it’s tough.  When we’re afraid.  The tension throughout our history between welcoming or rejecting the stranger, it’s about more than just immigration.  It’s about the meaning of America, what kind of country do we want to be.  It’s about the capacity of each generation to honor the creed as old as our founding:  “E Pluribus Unum” — that out of many, we are one.”
  • “That is what makes America great — not just the words on these founding documents, as precious and valuable as they are, but the progress that they’ve inspired.  If you ever wonder whether America is big enough to hold multitudes, strong enough to withstand the forces of change, brave enough to live up to our ideals even in times of trial, then look to the generations of ordinary citizens who have proven again and again that we are worthy of that.”
  • “That’s our great inheritance — what ordinary people have done to build this country and make these words live.  And it’s our generation’s task to follow their example in this journey — to keep building an America where no matter who we are or what we look like, or who we love or what we believe, we can make of our lives what we will.”
  • “You will not and should not forget your history and your past.  That adds to the richness of American life.  But you are now American.  You’ve got obligations as citizens.  And I’m absolutely confident you will meet them.  You’ll set a good example for all of us, because you know how precious this thing is.  It’s not something to take for granted.  It’s something to cherish and to fight for.”
  • “Thank you.  May God bless you.  May God bless the United States of America.”

Conclusion

Given the recent frequent negative comments about immigrants, especially in the rural areas of the U.S., it would be instructive to have such naturalization ceremonies broadcast live in all parts of the states where they occur. Another source of information and inspiration for all current U.S.  citizens is the recent widespread statements of governors justifying their support for resettlement of refugees in their states. [10]

Pope Francis also provides a religious justification for welcoming, protecting, promoting and integrating refugees and other immigrants.[11]

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

[1] Carol W. Brown, William Brown: English Immigrant of Hatfield and Leicester, Massachusetts and His Descendants, c. 1669-1994, at 1-4 (Gateway Press, Baltimore, MD 1994).

[2] Id. at 17-27.  See also these posts to dwkcommentaries: Watertown, Massachusetts, 238 Years Ago (April 20, 2013); The American Revolutionary War’s Siege of Boston, April 19, 1775-March 17, 1776 (July 27, 2012); The American Revolutionary War’s Battle of Bunker Hill, June 17, 1775 (July 30, 2012); The American Revolutionary War’s Campaign for New York and New Jersey, March 1776-January 1777 (Aug. 13, 2012); The American Revolutionary War’s Battle of Brooklyn (Long Island), August 1776 (Oct. 8, 2012); The American Revolutionary War: The Battle of Harlem Heights, New York, September 1776 (Oct. 10, 2012); The American Revolutionary War: The Battle of White Plains, October 1776 (Oct. 12, 2012). George Edwin Brown and Jennie Olivia Johnson Brown, dwkcommentaries.com (Mar. 17, 2013); n.1 supra at 267.

[4] Hansen, The Heyers From Krofdorf to Keystone at 9, 19 (Amundsen Publishing Co., Decorah, IA 1977).

[5] Finding Your Roots with Henry Louis Gates, Jr., PBS.org.

[6] Becoming a Pro Bono Asylum Lawyer, dwkcommentaries.com (May 24, 2011).

[7] See these posts to dwkcommentaries.com: Naturalized U.S. Citizens: Important Contributors to U.S. Culture and Economy (June 7, 2015); Minnesota Welcomes New Citizens (June 8, 2015); Another U.S. Citizenship Naturalization Ceremony (Feb. 18, 2016).

[8] Collins, Letter: A U.S. Naturalization Ceremony to Remember, W.S.J. (Nov. 23, 2020). Collins was prompted to write his article by reading another about a recent naturalization ceremony attended by Wall Street Journal columnist Jo Craven McGinty. (McGinty, More Green Card Holders Are Becoming U.S. Citizens, W.S.J. (Nov. 13, 2020).)

[9] President Obama Welcomes New U.S. Citizens with Inspiring Challenge, dwkcommentaries.com (Dec. 16, 2015)(contains full text of Obama’s speech).

[10] See these posts to dwkcommentaries.com: U.S. State and Local Governments’ Justifications for Consenting to Resettlement of Refugees (December 31, 2019); Five More States Have Consented to Refugee Resettlement (Jan.7, 2020); U.S. State Governments Celebrate Refugees’ Accomplishments (Feb. 2, 2020).

[11] Pope Francis Reminds Us to Welcome, Protect, Promote and Integrate Refugees and Other Migrants, dwkcommentaries.com (Jan. 1, 2020).

 

 

Pandemic Journal (# 34): Grim Report Lightened by News of Vaccines   

One of the objectives of this Journal is recording what it is like to live during the COVID-19 pandemic. Here is another such report. [1]

Current Status of the Pandemic[2]

The cumulative confirmed pandemic statistics as of November 21-22: the world has 55.6 million cases and 1.36 million deaths; the U.S., 12.2 million cases (the most in the world) and 256,000 deaths; and Minnesota, 262,952 cases and 3,201 deaths.

Minnesota like many other states continues to set record numbers of cases and deaths. As of November 21, the month “is on track to become the state’s deadliest month of the pandemic with 744 fatalities [so far],” accounting for 20% of the state’s total Covid-19 deaths. ” “Colder weather, drier conditions and the movement of people indoors have fueled the spread of the virus” in Minnesota and other states in the Upper Midwest.

This surge has put an enormous strain on hospitals and health care workers. For example, in Minnesota last week 79% of  available ICU beds are filled, and in some parts of the state open ICU beds were down to single digits. “More worrisome are the growing infections among health care workers who then cannot care for patients.”  Many hospitals in the state also do not  have stable supplies of masks and personal protective equipment (PPE) and enacted conservation methods — such as bagging then reusing disposal N95 masks.

On November 18, Minnesota Governor Tim Walz issued a detailed 23-page executive order, effective at the end of November 20 for the next four weeks: continuing the requirement for face masks and social distancing; prohibiting (with certain exceptions) social gatherings of individuals who are not members of the same household; limiting social gatherings to individual households; shutting down bars, restaurants, entertainment venues (movie theaters, museums, bowling alleys and fitness clubs); and pausing amateur sports.

In response to the Governor’s order, the management of our condo building on November 20 announced that “effective at the end of [that day] . . .  all association fitness rooms, indoor pools, community rooms, club rooms, libraries and other similar facilities that are currently open will be closed unless otherwise directed by your Board of Directors.”

This new condo building regulation unfortunately has caused me to cancel a weekly gathering in our entertainment center with two or three other male residents over coffee at a table with distanced chairs. There is no set agenda and instead we just start a conversation that usually lasts 60 to 90 minutes. We thereby learn more about one another and become better friends.

More optimistically, two vaccines with 95% success rates have been announced by two ventures (Pfizer/BioNTech and Moderna), one of which last week was submitted to U.S. federal agencies for emergency approval and this coming week the other is expected to make a similar application. In addition, three other companies (AstraZeneca, Johnson & Johnson and Novaax) are developing other vaccines that are still being tested. Everyone is hoping that the first two of these vaccines will be quickly approved by the federal government agencies and initially distributed to the public in mid-December.

My wife and I continue to be healthy while spending most of our time in our condo, except for trips to buy groceries and other supplies and for walks on nicer days. Yesterday just before the closing of our fitness facilities I walked for one mile in 20 minutes on a treadmill and had exercises in our weight room.  Our Thanksgiving Day will be celebrated in the condo by ourselves.

U.S. Presidential Election [3]

On November 3 the U.S. conducted its presidential election with a total popular vote of 153,628,574, which was 65% of all eligible voters, the highest since 1908.

On November 7 the Associated Press reported that the Democratic ticket (Joe Biden and Kamala Harris) won the election with 79,836,131 and 308 electoral votes while the Republican ticket (Donald Trump and Mike Pence) had 73,792,443 popular votes and 232 electoral votes. Thus, the Democratic margin of victory was 6,043,688 popular votes and 76 electoral votes.

President Trump, however, has refused to accept the above results of the election and has issued many tweets claiming the election was rigged and fraudulent. At his direction, the Republican Party or Campaign Team has commenced many lawsuits challenging the popular election in various states, but all of them have been dismissed or withdrawn with many of the judges castigating the poor legal arguments and the lack of supporting evidence offered by the attorneys for the Republicans. In addition, Trump has been attempting, so far unsuccessfully, to get Republican-controlled agencies in various states to appoint Republican electors to the Electoral College despite their popular vote having been for the Biden-Harris ticket.

As a Biden/Harris voter and as a lawyer interested in the rule of law, I have been, and continue to be, absolutely horrified by Trump’s efforts to steal this election.

In addition, Trump has instructed the official in charge of arranging for the president-elect’s transition to the presidency to refuse the  traditional provision of office space for the president-elect and the transition team and for national security briefings.

There has been a lot of speculation as to Trump’s motivation for not accepting the results of the election and engaging in these efforts to change the result of the election. One is his perceived psychological inability to accept defeat. The other is his realization that he faces immense problems if he is no longer president. One is his personal guaranties of over $300 million of loan liabilities of his various corporations. The other is his potential criminal liability for financial crimes, election-law violations, obstruction of justice, public corruption and partisan coercion. [4]

In any event, the Electoral College, under the Constitution, meets on January 6, 2021 to count the electoral votes and on January 15, the new president is inaugurated.

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

[1] See List of Posts to dwkcommentaries–Topical: Pandemic Journal.

[2} Our World in Data, Statistics and Research: Coronavirus Pandemic (COVID-19);Kumar, 40 more COVID-19 deaths, 7,219 new cases in Minnesota, StarTribune (Nov. 22, 2020); Snowbeck, November already sets record for COVID-19 deaths in Minnesota, StarTribune (Nov. 21, 2000); Howatt, November on track to be Minnesota’s deadliest month for COVID-19., StarTrib. (Nov. 20, 2020); Olson, ‘No beds anywhere’: Minnesota hospitals strained to limit by COVID-19, StarTribune (Nov. 22, 2020); Governor Walz, Emergency Order 20-99 (Nov. 18, 2020); Pfizer, BioNTech Ask FDA to Authorize Their Covid-19 Vaccine, W.S.J. (Nov. 20, 2020); Robbins & Mueller, AstraZeneca Releases Promising Data on Its Coronavirus Vaccine, N.Y. Times (Nov. 23, 2020).

[3] E.g., Riccardi, Biden approaches 80 million votes in historic victory, AP (Nov. 18, 2020); Trump’s legal team cried vote fraud, but courts found none, StarTribune (Nov. 22, 2020); National Archives, Electoral College Timeline of Events

[4] E.g., Choma, Trump Has a Half Billion in Loans Coming Due. They may Be His Biggest Conflict of Interest Yet, Mother Jones (July/August 2020); Mahler, Individual-1, N.Y. Times Magazine at 35 (Nov. 22, 2020); Jacobs, Trump’s post-presidency will be cluttered with potentially serious legal battles, Wash. Post (Nov. 22, 2020).

 

 

 

 

State Court Rejects Chauvin Divorce Settlement

As previously reported, only days after the May 25th killing of George Floyd, Kellie Chauvin filed an action for divorce from her husband, Derek Chauvin, who was a Minneapolis police officer and principal actor involved in that killing. This divorce case was filed in the Minnesota state court in Washington County, where they lived. [1]

In that divorce case it was revealed that the two Chauvins had an agreement whereby Kellie would receive all the equity in their homes in Minnesota and Florida, all of their funds in their bank and investment accounts, and all of Derek’s pension and retirememt accounts except for the non-marital portion of two accounts.[2]

On October 26, the Minnesota state court judge in that divorce case, District Court Judge Juanita Freeman, issued an order stating that the “court has a duty to ensure that marriage dissolution agreements are fair and equitable” and that “one badge of fraud is a party’s transfer of substantially all of his or her assets.” The court, therefore, ruled that their divorce settlement agreement was unenforceable and directed them to submit for the court’s consideration a revised agreement with a balance sheet showing all their assets and liabilities. If there is no revised agreement or if such a revision is not approved by the court, then Judge  Freeman would try and decide the case.

A Minnesota divorce attorney who is not involved in this case said, “This is just speculation, but it’s possible that the [agreement] was intentionally drafted to get assets out of Chauvin’s name in anticipation of a civil judgment against him from the estate of George Floyd.”

Indeed, in July, the attorneys  for the Floyd family filed a civil wrongful death action against Derek Chauvin and the other three police officers involved in the killing, and the lead attorney for the family, Benjamin Crump, said they they would seek “a precedent that makes it financially prohibitive for police to wrongfully kill marginalized people.”[3]

Also before the same state court are charges that the Chauvin couple engaged in tax fraud by failing to submit Minnesota income tax returns for several years and under reported their income.[4]

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

[1] Developments in Criminal Cases Over Death of George Floyd, dwkcommentaries.com (June 28, 2020); Derek Chauvin’s Wife’s Divorce Petition Raises Questions, dwkcommentaries.com (July 8, 2020

[2] Xiong, Judge rejects proposed Derek Chauvin divorce agreement, citing possible fraud, StarTribune (Nov. 20, 2020); Semenov, Proposed divorce agreement between Chauvin and wife rejected for possible fraud, FOX9 News (Nov. 20, 2020).

[3] Floyd’s Family Sues City of Minneapolis and Four Ex-Officers Involved in George Floyd’s Death, dwkcommentaries.com (July 16, 2020); George Floyd Family’s Complaint Against Four Ex-Police Officers Involved in George Floyd’s Death, dwkcommentaries.com (July 17, 2020).

[4] Chauvin and Wife Now Charged with Minnesota Tax Crimes, dwkcommentaries.com (July 22, 2020); Derek Chauvin makes first court appearance on tax fraud charges, Fox9 News (Sept. 8, 2020).

Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases

On November 5, the Hennepin County District Court issued five significant orders regarding the joint criminal trial of Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thao over the killing of George Floyd. These orders (1) granted the State’s motion for a joint trial of the four defendants; (2) preliminarily denied the defendants’ motions for change of venue; (3) provided for  juror anonymity and sequestration; (4) allowed audio and video coverage of the trial; and (5) narrowed its previous order regarding four members of the Hennepin County Attorney’s Office’s participation in the cases.[1]

On November 16, various motions and briefs were submitted objecting to the recent orders for a joint trial and allowing audio and video coverage of the trial as well as the pending motions for allowance of evidence of prior incidents of the four defendants and of Mr. Floyd. The most significant of these papers, in this blogger’s judgment, was Thomas Lane’s motion for reconsideration of the order for a joint trial of the four defendants, which, therefore, will be discussed first.

Lane’s Motion To Reconsider Joinder for Trial[2]

Lane argued that the order for joinder is premature as it does not consider the prejudice that will be caused by admission of evidence of prior incidents involving the other three defendants, none of which involved Lane.

Most significantly, Lane asserted that his  defense will be antagonistic to Chauvin in that he will be “pointing the finger” at Chauvin and that if Lane had known of Chauvin’s prior incidents, Lane would have acted differently. (Emphasis added.) (This is believed to be the first time that any of the defendants has pointed the finger at Chauvin, the principal actor in the death of Floyd.)

Moreover, said Lane’s attorney, the Court’s opinion regarding aiding and abetting liability was erroneous since it was inconsistent with a 2014 opinion of the U.S. Supreme Court, which, among other things, said such liability requires the defendant to have “advance knowledge that a crime is being committed.” (Emphasis added.)[3]

Finally, according to Lane’s attorney, a recently disclosed FBI report about its July 8th interview of Hennepin County Medical Examiner, Dr. Andrew Baker, contains significant points helpful to Lane and the other defendants.. Here are this blogger’s extracts of that report with emphasis on the points helpful to the defendants.

  • Baker’s office’s press release about its examination of Floyd’s body apparently mentioned ”cardiopulmonary arrest,” which “for a lay person would be the stopping of the heart and lungs. Other factors that contributed to Floyd’s cardiopulmonary arrest included hypertension, the presence of fentanyl and methamphetamine, as well as arteriosclerotic heart disease.”(P. 038777) (Emphasis added.)
  • “The term ‘complicating’ in the case title was a medical term meaning occurring after, during, or as a result of.” (P. 03877)
  • Baker defined the mechanism of death as Floyd’s heart and lungs stopping due to the combined effects of his health problems as well as the exertion involved in Floyd’s interaction with police prior to being on the groun” (Pp. 038777-78.) (Emphasis added.)
  • There was no evidence that Floyd’s airway was literally blocked shut. When viewing the body camera footage, the pressure did not appear to be directly over Floyd’s airway. Floyd would have been unable to speak if pressure was directly over his airway.” (P. 03778.) (Emphasis added.)
  • Officer Chauvin’s positioning on Floyd’s body does not fit anatomically with occluding Floyd’s airway.” (P. 038778.) (Emphasis added.)
  • There was no anatomic evidence of injury to Floyd’s neck but that does not rule out that pressure was applied by Chauvin.” (P. 038778.) (Emphasis added.)
  • The absence of petechiae weighs against strangulation.” (P. 038778.) (Emphasis added.)
  • Baker noted that that Floyd had no injury to . . .[his lower buttocks or upper end of Floyd’s thigh which were being held by Kueng].” (P. 038778) (Emphasis added.)
  • Baker noted that there was no relation to Floyd’s cause of death by Lane’s position [on Floyd’s feet].” (P. 038778.) (Emphasis added.)
  • “The struggle between officers and Floyd weighed into Baker’s opinion because physical exertion increases heart rate, releases adrenaline, and increases respiratory rate as well as cardiac demand. All of these things increased the likelihood of a bad outcome.” (P. 038778.)
  • Baker had no opinion on when Floyd became critical or near death.” (P. 038780.) (Emphasis added.)
  • Baker did not believe that the prone position was any more dangerous than other positions based on an article or journal he had read. “ (P. 038780.) (Emphasis added.)
  • Baker could not provide an answer on a ‘but for’ cause [of death]. (P. 038781.) (Emphasis added.)
  • Absent suspicious circumstances, if Floyd had been found dead in his bed with the level of fentanyl in his blood that was present for this autopsy, it may be classified aa fentanyl fatality due to the level of fentanyl.” (P. 039781.) (Emphasis added.)
  • When a death was labeled a homicide, it was not a legal ruling being made. The label was classified as such for public health reasons.” (P. 0388782.) (Emphasis added.)

Parties’ Battle Over Evidence of Defendants’ Prior Incidents[4]

 The State previously had argued for admission of evidence of eight separate incidents involving Chauvin’s actions in the course of his duties as a Minneapolis Police Officer. On November 16 the State submitted a supplemental argument in support of such evidence in light of its obtaining the body worn camera videos for one of those incidents that are relevant to show modus operandi, intent and lack of mistake and rebut any defense of reasonable use of force and that their probative value outweighs any potential unfair prejudice.

Lane’s objection to such evidence was just discussed.

In addition,  Chauvin’s attorney argued that these incidents are inadmissible to show his intent in the Floyd case or his alleged knowledge of the need to move Floyd from the prone position or a common scheme or plan or modus operandi and that evidence of such incidents is cumulative and unfairly prejudicial.

State’s Objection to Evidence of  Floyd’s Prior Incident with Minneapolis Police[5]

All Defendants intend to offer evidence of George Floyd’s May 6, 2019, incident with the Minneapolis Police Department even though the Court at the September 11, 2020, hearing held that such evidence was inadmissible. The State said the Court’s prior decision was correct and that the defendants intend to offer this evidence at trial was for the improper purpose of attacking Floyd’s character and suggesting he had a propensity to commit crimes or should be punished for his prior actions; that the prior incident does not show Floyd’s common scheme or plan in the incident that led to his death; that his state of mind in the prior incident is irrelevant; that the unfair prejudice of evidence of that prior incident far outweighs its probative value and that the defendants’ other arguments for such evidence are unpersuasive.

State’s Objection to Audio and Video Trial Coverage[6]

The State asked the Court for reconsideration of its order for audio and video coverage of the trial. The motion provided no reasons for that motion other than its previous objection to such coverage under Minnesota Rule of Criminal Procedure 4.02(d) and a brief to be filed on or before November 30.

A StarTribune editorial, however, supported this court order. It said, “It is in the best interest of trial participants and the public for this high-profile trial to be as accessible as possible. . . . [Judge] Cahill’s ruling is well-reasoned and fair.”

Reactions

An important reason for the Court’s November 5th order for a joint trial of the four defendants was there was no indication at that stage of the proceedings “that any of the Defendants is likely to be prejudiced by joinder because their defenses are not antagonistic but instead are mutually supportive.” Now, however, Defendant Lane has stated that his  defense will be antagonistic to Chauvin in that Lane will be “pointing the finger” at Chauvin and that if Lane had known of Chauvin’s prior incidents, Lane would have acted differently. This latest statement, therefore, is a serious challenge to the wisdom of a joint trial.

In addition, Lane’s disclosure of the FBI memorandum of its interview of the Hennepin County Medical Examiner, assuming it accurately reflects what the Examiner said, provides boosters for the defense and problems for the prosecution.

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

[1] Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing, dwkcommentaries.com (Nov. 5, 2020).

[2]  Defendant’s [Lane’s] Objection to the State’s Spreigl Notice and Motion to Reconsider the Court’s Order for Joinder, State v. Lane, Court File No. 27-CR-20-12951 (Nov. 16, 2020); Exhibit A [FBI Memorandum], Lane Objection to Spreigl and Motion to Reconsider Joinder Order,  State v. Lane, Court File No. 27-CR-20-12951 (Nov. 16, 2020).

[3]  This case was Rosemond v. United States, 572 U.S. 64 (2014), which requires close analysis.

[4]  State’s Supplemental Memorandum of Law in Support of Other Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020); Defendant’s [Chauvin’s] Objection to State’s Proposed Introduction of Spreigl Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020); Defendant’s [Kueng’s]Objection to the State’s 404(b) Evidence, State v. Kueng, Court File No. 27-CR-20-12953 Nov. 16, 2020); Defendant’s [Thao’s] Memorandum in Opposition to State’s Motion for Spreigl Evidence Against Mr. Thao, State v. Thao, Court File No. 27-CR-20-12949 Nov. 16, 2020); Defendant’s [Lane’s] Objection to the State’s Spreigl Notice and Motion to Reconsider the Court’s Order for Joinder, State v. Lane, Court File No. 27-CR-20-12951 (Nov. 16, 2020); Jany, Seeking to show pattern of excessive force by Chauvin, prosecutors cite incident with 14-year-old boy who couldn’t breathe, StarTribune (Nov. 17, 2020);Bailey, Former Minneapolis police officer charged in George Floyd’s death seeks to bar evidence of past neck and body restraints, Wash. Post (Nov. 17, 2020).

[5] State’s Response Opposing Defendants’ Motions To Admit Spreigl Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020).

[6] State’s Motion for Reconsideration, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020) State asks judge to reconsider permission for audio, video coverage of officers’ trial in George Floyd Killing, StarTribune (Nov. 16, 2020); Editorial, A victory for courtroom access in George Floyd case, StarTribune (Nov. 17, 2020).