On November 5, Hennepin County District Court Judge Peter Cahill issued five significant orders relating to the trial in the criminal cases against the four former Minneapolis policemen involved in the killing of George Floyd: Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thao. [1]
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.
The 51-page Order and Memorandum Opinion sets forth the Factual Background and then Discussion of the four-factor test for joinder established by the Minnesota Rules of Criminal Procedure and Minnesota case law. The following is the Court’s Summary of that detailed discussion (pp. 4-5).
“The first factor weighs strongly in favor of joinder because of the similarity of the charges and evidence against all four Defendants.” Indeed, “the critical evidence at trial”—body-cam videos of three of the defendants and cell-phone video of a bystander; Minneapolis Police Department Policies and Procedures and Training Manuals; autopsy reports and medical and forensic testimony about the circumstances and causes of Floyd’s death; and eyewitness testimony—”will be the same for all four Defendants.”
“The second factor slightly favors joinder in view of the impact of conducting four separate trials . . . would have on eyewitnesses if . .. [they] were forced to relive the events of May 25, 2020, by testifying to the same events at multiple trials,” especially since one of these witnesses is a minor.
“The third factor also strongly favors joinder because there is no indication at this 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.”
The “fourth factor also strongly favors joinder because conducting four separate trials arising from the same underlying incident and involving the same evidence and the same witnesses would result in unwarranted delay and impose unnecessary burdens on the State, the court, and the witnesses. Moreover, in wake of the unprecedented . . . scope of the publicity [about these cases] . . . if trials were to proceed separately for each Defendant, trial-related publicity surrounding the first trial (and succeeding trials) could potentially compound the difficulty of selecting a fair and impartial jury in all subsequent trials. Thus, the interests of justice also warrant joinder.”
The Court considered two factors in preliminarily deny the Defendants’ motions to change venue and transfer the case from Hennepin County to another district court in Minnesota: prejudicial publicity and safety concerns of the defendants and their attorneys.
With respect to the first factor, the Court took “judicial notice that the death of George Floyd has generated thousands of articles, reports and commentary in Minnesota, the entire United States, and internationally.” (n. 10.) As a result, “no corner of the State of Minnesota has been shielded from pretrial publicity regarding the death of George Floyd. Because of that pervasive media coverage, a change of venue is unlikely to cure the taint of potentially prejudicial pretrial publicity. Nevertheless, this is only a preliminary ruling and the parties are free to present the evidence from public opinion surveys they are presently conducting. In addition, this Court is planning to issue jury summons earlier than usual and to require summoned jurors to fill out questionnaires well before trial to gauge their knowledge of the case and any potential bias.”
The second factor—safety concerns—calls for “better safety planning,” which is currently being conducted by the Hennepin County Sheriff’s Office and the Court. The safety concerns regarding the 9/11/20 hearing at the smaller Hennepin County Family Justice Center with limited entrances and exits suggests it is more difficult to enhance security at such facilities, which would be true if the cases were transferred to a smaller county. Having the trial at the Hennepin county Government Center would facilitate tighter control of floor access and movement. In short, the “Court believes that safety issues can be mitigated to the point that a fair and safe trial may be had in Hennepin County and a jury can be insulated from outside influence and remain impartial.”
After reviewing the extensive publicity about the death of Mr. Floyd and these cases and related protest and unsolicited ex parte communications to the Court and counsel, there are “strong reasons to believe that threats to jurors’ safety and impartiality exist“ in these cases and that “all reasonable means should be taken to insulate the jury from such ex parte contacts.
Therefore, the Court ordered the “jurors’ names, addresses and other identifying information . .. [to] . . .be kept confidential by the Court and all parties throughout the trial and deliberation” After the conclusion of the trial, any information about the jurors shall be disclosed only after a “subsequent written Order” by the Court.
Each Defendant shall have five preemptory challenges of prospective jurors, and the State twelve such challenges. There will be four alternate jurors.
The jurors will be partially sequestered during trial with possible full sequestration if the partial plan “proves ineffective in keeping jurors free from outside influence.” In addition, during jury deliberations at the end of the trial, there shall be full sequestration.
The trial shall commence on March 8, 2021, and “may be recorded, broadcast, and livestreamed in audio and video subject to the conditions” contained in the order.
The Court’s oral order removing four members of the Hennepin County Attorney’s Office from these cases is vacated although they may not “appear as advocates in the trials and may not sign any motions or pleadings in these cases.
On October 21, Hennepin County District Court Judge Peter Cahill, with one exception, denied the four defendants’ motions to dismiss all criminal charges for alleged lack of probable cause in the George Floyd criminal cases. The exception was the charge of third-degree murder against Derek Chauvin, which was dismissed. These orders and the reasons for same are contained in the Court’s 107-page Order and Opinion on the four defendants’’ motions to dismiss for lack of probable cause.[1]
In so doing, the Court properly stressed that under Minnesota law its evaluation of these dismissal motions is “to assess whether the State has come forward with sufficient admissible evidence on each element of the charges . . .to warrant binding each of the Defendants over for trial . . . to accept as true all the allegations made by the State in its Statements of Probable Cause . . . [and to] draw in the State’s favor all inferences that may reasonably be drawn from those facts.” (Pp. 7-8.)
Here, we will review the main points in the court’s sustaining the charges of second-degree unintentional murder and second-degree manslaughter against Derek Chauvin and the charges against the other three defendants (Thomas Lane, J. Alexander Kueng and Tou Thau) for aiding and abetting these charges. Discussion of the dismissal of the third-degree murder charge against Chauvin will be left to the newspaper articles that are cited below.
Finding Probable Cause for Charge of Second-Degree Murder Against Chauvin
Under the above standard for evaluating such dismissal motions, the court concluded that there was probable cause that the prosecution had established probable cause for the following requirements for this crime: (i) Floyd died; (ii) “Chauvin’s conduct was a substantial causal factor in Floyd’s death;” (iii) “Chauvin intentionally inflicted or attempted to inflict bodily harm on Floyd or intended to cause Floyd to fear immediate bodily harm or death;: and (iv) “Chauvin inflicted substantial bodily harm on Floyd.” (Pp. 35-53.)
In the process of reaching these conclusions, the Court said: (i) “Chauvin never relented and never lessened the pressure of his knee against Floyd’s neck even when Floyd pleaded: ‘I can’t breathe. Please, your knew in my neck’’” (p. 39); and (ii) “Notwithstanding Floyd having gone silent and motionless, the mounting evidence of his lost consciousness, the plaintiff cries and demands from the bystanders, and the obvious reality that Floyd was no longer resisting or non-compliant, Chauvin’s demeanor never changed, and he continued kneeling on Floyd’s neck applying constant pressure to pin Floyd’s face to the pavement for an additional two and a half minutes” (p. 41).
These statements followed the Court’s “Factual Background,” which stated, in part, the following:
“The Critical Nine Plus Minutes between 8:19:18 and 8:28:42 P.M.: Floyd Is Subdued and Restrained Prone in the Street, with Chauvin Kneeling on the Back of Floyd’s Neck, Pinning His Face to the Street, Kueng and Lane Restraining and Pinning Floyd’s Back and Legs to the Street, and Thao Maintaining Bystander Watch.” (p. 22).
“Floyd uttered his final words ‘Please,’ at 8:23:55 p.m., and ‘I can’t breathe,’at 8:23:59 p.m.. . . Floyd then fell silent.” (p. 25.)
“Even after Floyd ceased talking and moving and went limp, Defendants maintained their positions.” (p. 25)
“As Floyd lost consciousness and shortly before uttering his final words, Lane asked Chauvin and Kueng: ‘Should we roll him on his side?’ Citing concern ‘about the exited delirium or whatever . . .[and] Chauvin rejected Lane’s suggestion, stating that the ambulance was en route.” (p. 25)
“Neither Lane nor Kueng did anything to challenge Chauvin’s answer. Instead, they remained in the same position and continued to hold down Floyd’s back and legs.” (p. 25)
“After hearing the bystanders’ pleas to check Floyd for a pulse [8:25:40-8-8:26:05 p.m.], Lane asked Kueng if he could detect a pulse. After checking Floyd’s wrist for about ten seconds, Kueng reported: ‘I can’t find one [a pulse].[8:25:45-8:26:00].” (p. 27.)
“Kueng continued to check Floyd for a pulse. About ten seconds later, Kueng sighed, leaned back slightly, and repeated: ‘I can’t find one.” [8:26:07-12.] (p. 27.)
“[8:26:12-18] Upon learning that Keung could not find a pulse, Chauvin squeezed Floyd’s fingers. Floyd did not respond.” (p. 27/)
“Even though Floyd remained unresponsive, the Defendants did not move from their positions. They continued to restrain Floyd—Chauvin with his left knee pressed firmly into Floyd’s neck, Kueng kneeling on Floyd’s back, and Lane holding Floyd’s legs—while Thao kept bystanders back on the sidewalk. They also ignored the off-duty firefighter’s urgent demands that they check Floyd for a pulse and begin chest compressions if he had no pulse. . . None of the Defendants ever attempted PR while Floyd was on the ground.” (pp. 27-28)
“At 8:27 p.m., an ambulance arrived on the scene. . . . Still, Chauvin, Kueng, Lane, and Thao did not move from their positions. . . . Indeed, even as Lane explained to emergency personnel that Floyd was ‘not responsive right now,’ Chauvin kept his knee on Floyd’s neck (8:27:36-38).” (p. 28)
“[F]or more than a minute after the emergency personnel arrived, Chauvin continued to press Floyd face-down into the pavement, Lane knelt over Floyd’s legs, and Thao continued to push back the crowd.” (p. 28)
At 8:28:42 p.m., when the stretcher was ready, Chauvin finally stood up, removing his knee from Floyd’s neck. . . .Floyd remained unresponsive.” (p. 28)
“In total, Floyd was subdued, pinned face-down in the street—with Chauvin’s knee pressing into his neck and Kueng and Lane restraining his back and legs—for more than nine minutes and twenty seconds.(8:19:18-8:28:42 p.m.) For over four minutes and forty seconds, Floyd did not speak. (8:24:00-8:28:42) For almost three and a half minutes, Floyd appeared not to be breathing. (8:25:15-8:28:42 p.m.) And for more than two and a half minutes, the Defendants were unable to locate a pulse. (8:25:10-8:28:42). Yet over that entire time period, Defendants remained in the same positions: Chauvin continued to kneel with his left knee pressed firmly down on Floyd’s neck pinning Floyd’s face into the street, Kueng and Lane remained atop Floyd’s back and legs, and Thao continued to prevent the crowd of concerned citizens from interceding.” (p. 29)
Finding Probable Cause for Charge of Aiding and Abetting Second-Degree Murder Against Other Defendants
Under the previously cited standard for evaluating such dismissal motions, the court concluded “the evidence the State relies upon is sufficient for probable cause purposes for the State’s charges that Thao, Lane and Kueng each independently aided and abetted Floyd’s second-degree unintentional murder by Chauvin.” (p. 79.)
The previously discussed evidence supports a potential jury conclusion “that Lane knew Chauvin was intentionally committing an assault that inflicted substantial bodily harm on Floyd” and that “Lane intended to aid Chauvin in the assault on Floyd.” (Pp. 79-91.) The same was true for Kueng (pp 91-94) and Thao (pp. 94-99).
Additional comments on Thao were required because “at no point was he involved in the efforts to physically restrain Floyd. Rather, his role was primarily to maintain watch over the growing crowd of bystanders.” (Pp. 94-99.) But “a jury could conclude, on the basis of the evidence, that Thao knew that Chauvin was intentionally inflicting substantial bodily harm on Floyd” and that Chauvin’s continuing to kneel on Floyd’s neck for minutes after he had ceased talking, moving, or breathing and knowing that Kueng had not been able to detect a pulse was contrary to MPD policy and could not be a considered a justifiable use of reasonable force.” Moreover, under Minnesota cases, “Active participation in the overt act that constitutes the substantive offense—here, the assault—is not a requirement for aiding and abetting liability” and that “’the lookout’ . . ‘is a classic example’ of an ‘aider and abetter.’”
Finding Probable Cause for Charge of Second-Degree Manslaughter Against Chauvin
Under the previously cited standard for evaluating such dismissal motions, the court concluded there was sufficient evidence for a jury to conclude that Floyd died and that Chauvin caused that death “by culpable negligence, whereby Chauvin created an unreasonable risk and consciously took a chance of causing death or great bodily harm.” (Pp. 67- 75.)
Finding Probable Cause for Charge of Aiding and Abetting Second-Degree Manslaughter Against Other Defendants
Under the previously cited standard for evaluating such dismissal motions, the court concluded that there was probable cause for the charge of aiding and abetting second-degree manslaughter because there was sufficient evidence for (i) Chauvin’s causing Floyd’s death by culpable negligence, whereby he created and unreasonable risk and consciously took a chance of causing death or great bodily harm; (ii) the other three defendants “knew Chauvin by his culpable negligence, created an unreasonable risk and consciously took a chance of causing death or great bodily harm; “ and (iii) the other three defendants “intended that . . .[their] presence or actions aided Chauvin’s commission of that crime.” (Pp. 99-107)
Conclusion
To this retired lawyer bystander, this Order and Memorandum is exceptionally well reasoned, documented and written. Moreover, I think it implicitly signals that the Judge will deny the defense motions to change venue (unless the demonstrations and protests get further out-of-line) and grant the prosecution’s motion for a joint trial of the four cases. An implicit or explicit consideration for Judge Cahill’s deciding the change of venue motions by the four defendants would have to be not wanting to impose the immense burden that would be placed on another district court in the state in taking on this complex case in which so much already has happened.
If I were representing one of these defendants, I would be very worried about my chances for success at trial.
Developments in the four criminal cases over the killing of George Floyd through September 18, have been discussed or cited in a previous post.[1] Here are the further developments in the cases over the last two weeks.
The most significant development has been J. Alexander Kueng’s attorney’s October 1st argument that the case should be moved from Hennepin County to another county in order to protect the defendants’ safety. The following was the asserted factual basis for this supplemental argument:
For the September 11th hearing, “no recognizable plan was in place in advance of the hearing to assure the safe and orderly entry of CoDefendants or Co-Counsel into the courthouse.”
“ Chauvin, who is in custody, was subjected to a degree of humiliation by being paraded in public dressed in jail cloths and body armor.”
“Attorneys and Defendants were harassed upon arrival and departure from the courthouse.”
Attorneys “ Paule and Mr. Thao were followed for several blocks by jeering protestors when departing. . . .[Attorneys] Gray, Plunkett, and their respective clients were harassed. Gray and Lane were physically assaulted.”
“A privately owned vehicle sustained nearly $2,000.00 worth of damage from the violent rioters.”
“A rioter also used video from the event to dox [slang: publishing the private personal information of another person] one of the parties.”
“Before leaving the courthouse, counsel conferred with court security to get advice on how they should safely leave the area. Court security suggested they wait until after The Floyd family and their attorney had addressed the crowd. This advice did not make sense, and, if followed, caused greater concern for attorney and client safety. Counsel rightfully believed that these speeches would incite the crowd making their departure far more risky and tempt rioters to storm the courthouse.”
Under Minnesota Rules of Criminal Procedure, the defense attorney argued, “a change of venue may be granted in the interests of justice,” and under cited Minnesota Supreme Court cases, “Where there is reason to believe that it will be impossible to obtain a fair and impartial trial in the county selected because of local prejudices, feelings, and opinions, the ends of justice require that a change of venue be granted.”
If the trial were held in Hennepin County, said the defense attorney, “the jury will be influenced by the screaming and yelling of the crowds that could be heard from the first floor during the motions hearing. . . . Witnesses will be intimidated as they have to walk the gauntlet before they testify. Defense witnesses will be reluctant to testify if providing exculpatory evidence will subject them to rioting, assaults and dox attacks.”
“The defendants have to reasonably question whether the chants and crowds will impact the decisions of the judge and jury in their case as the people that will decide their case pass through the rioters during weeks of trial.”
“The defendants and their lawyers cannot safely enter and exit the courthouse. Parties were physically assaulted after a simple motions hearing. During trial, tensions are going to be even higher. The lawyers will be carrying notebooks, computers, law books and other materials to help defend their clients, which will make it more difficult for them to avoid the angry crowds.”
“As demonstrated by the September 11th hearing, the Court simply cannot control the rioters and protesters who have taken to the streets of Minneapolis. This Court must grant a change of venue to a county where the defendants can obtain a fair trial free from the riots and crowds that will occur if he is tried in Hennepin County.”
Presumably the other three defendants will support this argument and the State will attempt to counter it, presumably be identifying security measures that will be imposed.
Another significant development was the State’s notice of intent to offer evidence of eight other instances of Chauvin’s alleged use of force to prove his intent, knowledge; common scheme or plan and modus operandi; one instance of Kueng’s use of force to prove knowledge and intent; and nine instance of Thao’s conduct to prove expediency, dishonesty and refusal to respond to training.
The State also said it intends prior to trial to file a separate memorandum in support of the admission of this evidence and that it “may offer evidence of other acts, instances of specific conduct, and prior convictions” of the defendants.”
The defendants have not yet responded to this notice, except in their additional arguments against joinder of the cases for trial, as discussed below.
Additional Arguments Against Joinder of Cases for Trial[4]
As previously discussed, the court at the September 11 hearing heard arguments for and against the State’s motion to join all four cases for one trial. Now two of the defendants have submitted additional opposing briefs.
Chauvin’s attorney argued that the State’s intent to offer evidence of eight prior acts of Chauvin and of prior acts of two of the other defendants (Kueng and Thao) demonstrates that “a majority of the evidence will not be admissible against all defendants” and, therefore, contradicting the State’s argument for joinder. In addition, Chauvin would be prejudiced by the other defendants attempts to blame Chauvin.
Kueng’s attorney argues that the State’s intent to use evidence of prior bad acts by Chauvin and Thao would prejudice Kueng because such evidence could be used against Kueng and he could use the evidence in a manner in which the State would be prohibited.
Lane’s attorney noticed his intent to offer evidence of Lane’s good character in a January 2020 encounter with a homeless Black individual in a wheelchair.
In addition to his previously mentioned additional argument for change of venue, Kueng has filed an appeal to the Minnesota Court of Appeals from the district court’s denial of his request for public funding of fees for services other than counsel.
[6] Appellate Notice of Case Filing, State v. Kueng, Court File No.: 27-CR-20-12953 (Hennepin County District Court Sept. 22, 2020 27-CR-20-12953 (Hennepin County District Court Sept. 22, 2020); Appellate Notice of Court Filing, State V. Kueng, File #27-CR-20-12953 (Minn. Ct. App. Sept. 22, 2020); Request for Trial Court Record-Appellate Court, State v. Kueng, File A20-1225 (Minn. Ct. App. (Sept. 24, 2020); Appellate Exhibit List, State v. Kueg, Court File No.: 27-CR-20-12953 (Hennepin County District Court Sept.25, 2020).
Hennepin County District Court Judge Peter Cahill in his Minneapolis chambers is considering whether the four criminal cases over the killing of George Floyd should remain in Minneapolis for further proceedings and trial or be transferred to another Minnesota state court. This is the key issue in the judge’s deciding the pending motions for change of venue submitted by the four defendants—Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thao—and vigorously opposed by the Minnesota Attorney General’s office.[1]
Outside the court a strong argument for the cases remaining in Minneapolis–where Floyd’s killing occurred, where the defendants worked and where the witnesses reside– has been put forth by a former U.S. Attorney for the District of Minnesota and now a visiting professor at the University of St. Thomas School of Law (both based in Minneapolis), Rachel K. Paulose.[2] Here are the highlights of her argument.
“Trial venue is not a minor procedural issue. It matters because the people’s voice matters. The arguments by those charged in Floyd’s death could be raised by any high-profile defendant seeking to evade local oversight in any trial court in the United States. If venue is changed routinely in police brutality cases, there is a grave danger that citizens will lack the power to hold police forces accountable when a rogue officer fails to behave lawfully.”
“Why are the defendants so desperate to run away from the Twin Cities? The defendants claim “an impartial jury cannot be seated for the trial” in Minneapolis because of the saturated media coverage and ensuing protests. This claim is misguided for at least three reasons.”
“First, bystanders filmed Floyd’s death in a video that went viral on a global scale. No city in Minnesota, the United States and perhaps the entire Internet-connected world would be immune from the Floyd defendants’ concerns of a jury pool irretrievably biased by excessive media coverage.”
“Interestingly, [counsel for the four ex-officers concede] . . . the Minnesota Supreme Court has held that a change of venue is not warranted in a case where ‘no evidence had been provided to indicate that any part of Minnesota had been shielded from publicity.’ Faced with case law that requires the opposite of what they seek, the Floyd defendants are left to argue the rules must be bent for them: ‘The legal standard needs to be altered.’”
“Second, while protesting the nonstop media coverage, the attorney for Derek Chauvin, the officer who pressed his knee into Floyd’s neck, objects to the gag order in this case, asserting it “prevents any mitigating or exculpatory information from entering the public conversation.” What is that mitigating information? Apparently, based on further filings, Chauvin and a co-defendant want to raise claims of Floyd’s purported drug use, violence and criminal record. It cannot be that the defendants may have it both ways, arguing that they have suffered from too much (adverse) publicity and inadequate (positive) publicity.”
“Third, and perhaps most significant, the jury demographic pool changes dramatically outside the Twin Cities metro area, in a way that is likely helpful to the defendants and harmful to Floyd. The Census Bureau estimates that Hennepin County, where Floyd died, is 14 percent Black and 74 percent White. Hennepin County is the most diverse county in the state, and it would be nearly impossible to seat an all-White jury in Minneapolis. By contrast, the three rural counties where one of the defendants has suggested in his motion to change venue have Black populations of less than 1 percent to 4 percent.”
“Jury pools that do not share the same community dynamics of Floyd’s home deny the people of Minneapolis their interest in achieving justice in this case. Minneapolis streets burned in response to Floyd’s death. Minneapolis businesses, many minority-owned, suffered the brunt of the unrest that resulted when politicians pulled back from protecting the city. The people of Minneapolis are still dealing with the consequences for law enforcement and their own safety.”
“Sadly, police brutality is not unique to Minneapolis. Nor are the demographic patterns in metropolitan vs. rural areas unique to Minnesota. The risks posed by changing venues in police brutality cases are painfully evident. These cases are hard for prosecutors to win in any event, and a loss carries with it the threat of violent reaction by an angry community that believes justice has been denied. In 1992, Los Angeles exploded in anger after widespread suspicion that a venue change from Los Angeles to Simi Valley, Calif., led to the acquittal of four police officers charged with beating Rodney King. The Bill of Rights applies to “We the People of the United States” and not just to criminal defendants. The framers of the Constitution are unlikely to have foreseen the complexities of our digital age, but they trusted the American people to control every branch of their government, including the judiciary through the Sixth Amendment jury trial guarantee.”
“As a woman of color, I was heartbroken to see the images of Floyd’s dying moments. As a former U.S. attorney and civil servant privileged to work with many honorable law enforcement officers, I am concerned by the prospect of police facing the wrath of angry protesters because of the actions of four men in Minneapolis. It is because I support law enforcement and uphold the Constitution that I am convinced that those who abuse their authority must answer for their actions to their own constituents. The trial must remain in Minneapolis.”
Information about what happened at the 9/11/20 hearing is provided by many media reports.[1] Here is a summary of those reports, again following the court’s Agenda for the hearing.
State’s Motions
Joint Trial. The State’s arguments were presented by Special Assistant Attorney General Neal Katyal, the famous attorney, law professor and commentator from Washington, D.C. He argued that the evidence against all four defendants is similar, that witnesses and family members are “likely to be traumatized by multiple trials” and that the interests of justice necessitate a single trial because separate trials would taint future juries. He also said, “The defendants watched the air go out of Mr. Floyd’s body together. And the defendants caused Mr. Floyd’s death together.”
Thao’s attorney responded to the last point by arguing that the jury pool already has been tainted by comments about the case by Attorney General Ellison and others.
A St. Paul attorney who is not involved in the case, Paul Applebaum, said, “it’s going to be tough for the defense attorneys to get the cases separated, partly because it would be difficult for Chauvin to blame the other officers for the charges of murder and manslaughter against him, but also because of the burden of holding four separate trials.”
Aggravating Factors for Upward Sentencing. Assistant Attorney General Matthew Frank argued that Floyd was particularly vulnerable because he was handcuffed and pinned to the ground. Judge Cahill expressed some skepticism of this point by asking whether what happens during an encounter qualifies for this purpose.
In its Notice of Intent To Offer Other Evidence of 9/10/20, the State said it intended to offer evidence of Chauvin’s eight prior instances of use of excessive force, including use of neck and upper body restraints. In four of those, Chauvin allegedly used them “beyond the point when such force was needed under the circumstance,” an indication of his pattern, including his restraint of Floyd.[2]
Defendant’s Motions
Motions for Change of Venue. Judge Cahill said it was too early to decide on a change of venue for the trial. He noted that Hennepin County District Court has been sending questionnaires to potential jurors to complete at home because of COVID risks and for the sake of expediency and that the court could start polling potential jurors ahead of the scheduled March 8 trial.
But two of the defense attorneys argued that the questionnaires should be completed in person at the courthouse because it carries more weight and meaning. Assistant Attorney General Matthew Frank agreed.
In response to defense arguments about adverse public opinion in Hennepin County, the Judge asked one of them, “There really isn’t a country, would you agree, or a state in this country where there hasn’t been a lot of publicity about George Floyd’s death?”
Jury Sequestration. The Judge said “it would be almost cruel to keep them in on weeks at a time. Instead, he suggested they be “semi-sequestered:” jurors drive to court each day for deputies to escort them from their vehicles to a secure elevator, have their lunches brought in to the jury room and then have them escorted back to their vehicles.
Motion to Disqualify HCAO [Hennepin County Attorney’s Office]. From the bench Judge Cahill said the HCAO’s work “sloppy” because they sent prosecutors to question the medical examiner, making them witnesses in the case. Therefore, he disqualified County Attorney Freeman and three assistants who questioned the Examiner because they are potential witnesses. However, others from the Office were not disqualified.
Afterwards Freeman and the Minnesota Attorney General requested reconsideration of this decision, which Judge Cahill granted. The request stated, “Any suggestion by Judge Cahill that the work of . . . [two Assistant County Attorneys] was sloppy was incorrect. The . . .[HCAO] fully stands by the work, dedication and commitment of two of the state’s best prosecutors. That third party mentioned by Judge Cahill does not need to be a non-attorney. [The two attorneys in question] asked to leave the case on June 3 and Frank [the other attorney in question] is the attorney of record, making . . .[the other two attorneys] valid third-parties and eligible to be called as witnesses by the defense. This HCAO decision is consistent with the relevant Minnesota Supreme Court case.
Rule 404 Evidence Motions. The Judge denied defense’s intent to offer evidence regarding Floyd’s arrest and conviction in Texas as it was irrelevant. He also denied the defense request for evidence regarding Floyd’s 05/06/19 medical incident at the Hennepin County Medical Center although he said it could come up at a later date.
Administrative Matters
Jury Selection. The Judge said that he anticipates jury selection will take two weeks with each prospective juror to take the witness stand for questioning by the attorneys.
COVID-19 Restrictions. The Judge said these restrictions would be in place with overflow rooms for family and press.
Trail Length. The Judge said he anticipates a four-week trial.
Conclusion
Although I was not in the courtroom to observe the Judge, the journalists’ reports suggest that the Judge is leaning towards a consolidated trial of all four defendants in Hennepin County under his supervision.
During the 3.5 hour hearing a highly organized, peaceful group of several hundred protesters gathered in front of the heavily fortified Family Justice Center. At first they laid silently on the ground for eight minutes and 46 seconds, which was the initially reported duration of the police pinning of Floyd on the pavement on May 25th (that figure was incorrect; the corrected number is seven minutes and 46 seconds).[3] When they rose, Marvin Gaye’s recorded voice sang, “Mother, mother, there’s too many of you crying” (the first verse from the late singer’s 1970 song “What’s going on”).
The protesters then repeatedly chanted, “Indict, Convict, Send These Killer Cops to Jail. The Whole Damn System Is Guilty As Hell!” Another call was “Say his name!” with the “George Floyd” response. Another: “Who killed him?” and “MPD.” The messages on their signs included the following: “No clemency for killer kkkops” and “Recall Freeman” and a reconfigured MPD badge to say “Murderous City of Lakes Police.”
When Lane and Kueng and their attorneys left the building, they were met by protestors yelling “Murderer!” The crowd then remained until Floyd’s family members left the building, and many of the protestors turned into a dance line, including the Electric Slide.
The protestors apparently are not aware that their protests are ammunition for the defendants’ arguments for transferring the cases to another county, where emotions are not so virulent. The protestors should adopt a different strategy.
After the hearing, Ben Crump, an attorney for the Floyd family, publicly expressed outrage over defense suggestions that Floyd’s use of drugs or earlier run-ins with the police were relevant to the killing of Floyd. “The only overdose was an overdose of excessive force and racism. It is a blatant attempt to kill George Floyd a second time.”
This preview will follow the Agenda for the 9/11/20 hearing in the four George Floyd criminal cases that has been set by the Hennepin County District Court Judge Peter Cahill.[1]
On August 12, the State asked the court to consolidate all four of the cases for one trial on the grounds that the charges and evidence in all four cases are similar; that there would be less negative impact on witnesses and family members; the defenses of the four ex-officers were not antagonistic; and the interests of justice would be advanced.
Unsurprisingly all of the four defendants are opposing this motion. Here is a summary of their arguments: Chauvin: other defendants likely to blame Chauvin, whose defenses are likely to blame the others and thus they are mutually antagonistic; trying Chauvin first is the sensible approach which would dictate the need for, and scope of, any other trials. Kueng: different evidence on whether and how the defendants worked in close concert; no particularly vulnerable witnesses; antagonistic defenses; interests of justice do not favor joinder. Lane: likely antagonistic defenses with each defendant having different version of what happened and who is to blame, forcing jury to choose between defendants’ testimonies. Thao: Minnesota has favored separate trials; unknown if “overwhelming majority” of evidence will be same in all the cases; Thao did not work in close concert with the others; impact on Floyd family is not a factor; nature of Floyd’s death does not favor joinder; antagonistic defenses are highly likely; COVID-19 favors separate trials with smaller gatherings at each.
Motion to Submit Aggravating Factors to Jury (Blakely)[3]
Under Blakely v. Washington, 542 U.S. 2996 (2004), the U.S. Supreme Court held that the defendant’s Sixth Amendment right to a jury trial can be violated any time the court imposes a sentence greater than that called for in the guidelines, even when the sentence imposed is below the maximum punishment permitted by the legislature.
On August 28, the State gave notice of its intent to seek an upward sentencing departure for Chauvin on the grounds that Floyd was particularly vulnerable and was treated with particular cruelty by Chauvin, that Chauvin abused his position of authority, committed the crime as part of a group of three or more offenders who actively participated in the crime and in the presence of multiple children.
On August 28, the State moved for establishing deadlines of disclosure of expert witnesses with the following suggestions: Initial Expert Disclosures (12/08/20) and full Expert Disclosures (01/08/21).
All four defendants have moved for change of venue with the following arguments: Chauvin (excessive pretrial publicity in Twin Cities); Lane (transfer to Washington or Dakota County because fair trial impossible in Hennepin County);Thao (fair trial impossible In Hennepin County; change to St. Louis, Clay or Crow Wing County); Kueng (prejudicial publicly in Hennepin County; change to another county “outside the seven-county metro area, such as Stearns County or another county with appropriate facilities and demographics”).
On August 28, Thao moved for jury sequestration and juror anonymity due to “the notoriety of the case.”
Motion to Disqualify HCAO [Hennepin County Attorney’s Office][7]
The only apparent motion to disqualify the HCAO was filed on August 6 by the attorney for Kueng on the ground that the County Attorney had made prejudicial comments about the defendants, and the very next day (August 7) Judge Cahill denied the motion.
On August 27, Kueng gave notice that he may offer at trial evidence regarding (1) the circumstances of (a) Floyd’s 05/06/19 arrest by MPD; (b) Floyd’s 05/06/19 medical intervention at Hennepin County Medical Center; and (c) Floyd’s 08/09/07 arrest and subsequent conviction in Texas for Aggravated Robbery with a Deadly Weapon.
Discovery Motions[9] On August 24, Thao filed a motion to compel discovery of the following regarding the investigation and death of Floyd; (1) complete Hennepin County Medical Examiner’s Office file; (2) any and all reports and autopsies performed by Dr. Michael Baden; (3) any and all reports and autopsies performed by Dr. Allecia Wilson; and (4) entire Office of the Armed Forces Medical examiner file.
On August 28, Chauvin filed a motion for the State’s disclosure of (1) body worn camera/audio from MPD CN-201 9-127538 from Floyd’s arrest; (2) files pertaining to Floyd’s cooperation as an informant for the MPD, FBI or any other state or federal law enforcement agency; (3) files documenting Floyd’s activity as a gang member or affiliate within the past five years; (4) information regarding Floyd’s 05/06/19 drug possession/sale investigation; (5) training materials with active imbedded links to video portions; and (6) index to State’s document disclosures.
Administrative Matters
Jury Selection
Method
Preemptory Challenges
In-Court Presence/COVID-19 Restrictions
Overflow rooms/Audio-Visual Coverage
Overnight/Special Transcript Requests
Trial Length/Daily Schedule
Substantive Matters
The Judge already has announced that the only substantive matters—the four defendants’ motions to dismiss for alleged lack of probable cause for the criminal charges—will be decided on the briefs and factual record without argument at the hearing.[10] The only new details on these motions is the State’s recent opposition to Defendant Kueng’s dismissal motion and its future opposition to the recent Chauvin motion. [11]
[10] See these posts to dwkcommentaries.com: Ex-Officer Lane Moves for Dismissal of Criminal Charges for George Floyd Killing (July 9, 2020); Comment: Prosecutors Oppose Ex-Cop Thomas Lane’s Dismissal Motion (Aug. 12, 2020); Prosecution Opposes Lane’s Dismissal Motion (Aug. 21, 2020); Lane’s Reply to Prosecution’s Opposition to Dismissal of Complaint (Aug. 22, 2020); Ex-Officer Thao Moves for Dismissal of Criminal Charges for George Floyd Killing (July 30, 2020); Defendant Thao’s Dismissal Motion (Aug. 25, 2020); Prosecution Opposes Defendant Thao’s Dismissal Motion for George Floyd Killing (Aug. 27, 2020); Defendant Kueng Moves for Dismissal and Change of Venue in George Floyd Case (Aug. 28, 2020); Chauvin Motion To Dismiss Criminal Complaint (Sept. 9, 2020).
On August 27, J. Alexander Kueng, a former Minneapolis police officer, submitted a motion to dismiss the criminal complaint against him and to change the venue of the case from Hennepin County to a county with “appropriate facilities and demographics,” such as Stearns County. [1]
Most of the eight-page dismissal motion was a legal memorandum in support of the motion to dismiss for alleged lack of probable cause for the charges of aiding and abetting second degree murder and second-degree manslaughter. Its statement of facts purports to be taken from the criminal complaint.
No Aiding and Abetting Second-Degree Murder. “The restraint used on Floyd by Chauvin was reasonable. As the complaint notes, officers are trained on how to use the neck restraint involved here. Moreover, the restraint has been found to be reasonable when the subject “actively resists,” citing Lombardo v. City of St. Louis, 956 F.2d 1009, 1013 (8th Cir. 2020).
Although the complaint does not say Floyd resisted, its description of his actions “show he resisted. He resisted and fell to the ground when Lane and Kueng tried to pick him up off the sidewalk. . . . Floyd would not voluntarily get into the squad [car]. Multiple officers tried to get him into the squad , and when Floyd continued to resist, Chauvin pulled Floyd onto the ground. Floyd continued to resist by calling out while he was on the ground. Given Floyd’s resistance, the use of neck restraint was reasonable.”
“[T]here is no evidence that Kueng knew Chauvin was going to commit a crime at the time and during the time Chauvin utilized the neck restraint. [Twice Chauvin rejected Lane’s suggestion of rolling Floyd onto his stomach, showing Chauvin did not consider his use of force to be unreasonable.] There is no evidence that Kueng knew Chauvin was going to commit or was committing a third-degree assault” or that “Kueng intended his presence to further a crime.”
No Aiding and Abetting Second-Degree Manslaughter. “Chauvin’s actions were not objective gross negligence. He used a technique that he was trained to use and that the Eighth circuit has found to be reasonable.” Nor was Chauvin’s conduct subjectively reckless. Moreover, the “complaint does not establish that Kueng knew Chauvin was going to negligently commit a crime or that he did so or that “Kueng intended his presence to further the commission of a negligent act.”
Kueng also moved for a change of venue from Hennepin County to another county “outside the seven-county metro area, such as Stearns County or another county with appropriate facilities and demographics.”
This motion was based upon “’potentially’ prejudicial material that has been disseminated publicly by the prosecution, creating a reasonable likelihood that a fair trial in the metro area cannot be had.” It also asserts that there have been over 1,700 local articles about these criminal cases.
[2]Notice of Motion and Motion To Dismiss for Lack of Probable Cause, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County District Court August 27, 2020). Kueng also submitted a Notice of Additional Evidence regarding (a) Floyd’s May 6, 2019, Minneapolis arrest for sale and possession of large quantities of controlled substances and his immediate medical intervention at Hennepin County Medical Center; and (b) his August 9, 2007, Texas arrest and subsequent conviction for Aggravated Robbery with a Deadly Weapon. (Notice of Additional Evidence,, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County District Court August 27, 2020).
On June 29, Hennepin County District Judge Peter Cahill held a pretrial hearing in the George Floyd criminal cases against Derek Chauvin,Tou Thao,Thomas Lane and J. Alexander Kueng.[1]
The judge scheduled another pretrial hearing for September 11 and for the trial tentatively to start on March 8. Although the prosecutors seem to be pushing for a consolidated trial, defense counsel are expected to request separate trials so that should be a future issue for the court to resolve.
None of the officers entered pleas at the hearing, but Lane’s attorney told the court he would be filing a motion to dismiss the case against his client for alleged insufficiency of evidence. Afterwards Kueng’s attorney filed a document with the court advising that his client intends to plead not guilty, claiming self-defense and use of reasonable and authorized force.
One of the major issues at the hearing was whether public officials’ statements about the cases might call for a change of venue from Minneapolis in Hennepin County to another county. Robert Paule, the attorney for Thao, said he was planning to make such a motion in light of public statements by Police Chief Arradondo and Department of Public Safety Commissioner Harrington, who have called Floyd’s death a “murder,” along with other statements by Gov. Tim Walz and Attorney General Keith Ellison.
Judge Cahill acknowledged these statements, and said people who are aligned with the state’s stance on the case are pushing it toward a change of venue. “It’s in everyone’s best interest” that no public statements about the case be made, the Judge said, noting that they’ve come from family, friends and law enforcement officials. “What they’re doing is endangering the right to a fair trial” for all the parties.
“They need to understand that; at this point they need to be aware of that,” Cahill said, and asked Assistant Attorney General Matthew Frank if prosecutors are addressing the matter with public officials. In response, Frank said, “We are just as interested in fair trial and are acutely aware of the issues you talk about. We have asked people not to talk about this case … we’ve done our best to make the court’s concerns known to them and will continue to do so.”
The Judge also admonished two members of Floyd’s family for visibly reacting to his statements at the hearing. Afterwards George Floyd’s uncle, Selwyn Jones, told journalists he was offended by the Judge’s comments.
On December 17th U.S. President Barack Obama commuted the sentences of three Cuban spies to time served and released and returned them to Cuba. They are Antonio Guerrero, 56, a U.S. citizen; Ramón Labañino, 51; and Gerardo Hernández, 49.
Antonio Guerero
Ramón Labańino
Gerardo Herńandez
They were known as members of “the Cuban Five,” a Cuban spy ring in South Florida in the 1990s that infiltrated Cuban-exile groups and U.S. military installations.[1] They, along with other members of the ring, tried to make themselves indispensable to the exile groups whose secrets they stole. One of the operatives worked at the Naval Air Station in Key West, while another worked undercover in Tampa.
Once their cover was blown and federal agents smashed the ring, they were arrested and jailed on September 2, 1998. Several of its members pleaded guilty to various charges, but the Cuban Five instead went to trial, starting in November 2000 and concluding in June 20001. They were convicted on all charges and sentenced in December 2001 to long prison terms although two of them after completion of their sentences were released from prison and returned to Cuba in 2013 and 2014.
Mr. Guerrero, who was born in South Florida and studied engineering in Ukraine, was originally sentenced to life plus 10 years, but later was re-sentenced to 21 years plus 10 months (262 months). Mr. Labañino is a native of Havana who studied economics at the University of Havana. Originally sentenced to life plus 18 years, he later was resentenced to 30 years.
Mr. Hernández was the only one of the group convicted of conspiracy to commit murder and sentenced to two life sentences plus 15 years. American investigators accused him of having previous knowledge of the Castro government’s plans in 1966 to shoot down two Cuba-exile organization private planes that regularly flew missions from the U.S. near Cuba, killing four anti-Castro volunteers.
A fuller understanding of the Cuban Five and the recent release of the three Cuban men from U.S. prison requires an examination of (a) the events that precipitated the downing of the two planes; (b) the actions of the Cuban Five relating to those events; (c) the long, complicated history of their criminal case in U.S. federal courts; and (d) reactions to the commutation of the three men’s sentences and their release from U.S. prison and return to Cuba.
Precipitating Events
According to one of the judges in the latest 11th Circuit decision that is discussed below, the trial evidence established that Brothers to the Rescue (“BTTR”), an anti-Castro Cuban exile group in Miami, repeatedly and knowingly had violated Cuban airspace since 1994. Here are some of the details:[2]
In 1994 a BTTR flight flew near the Cuban coast with a television reporter who filmed Cuban military fighter jets circling, but not firing at the BTTR plane.
Later in 1994, another BTTR plane flew over Cuba near Guantanamo Bay and dropped BTTR bumper stickers, and again Cuba did not fire at the plane.
In 1995 BTTR announced that it would commit civil disobedience in Cuban waters, and in response the U.S. State Department issued a public warning that no one should violate Cuban waters and airspace. Nevertheless BTTR proceeded to send a boat into Cuban waters and a plane flew over Havana for 13 minutes dropping anti-Castro leaflets and religious medals. Again the Cuban military did not attack the BTTR plane. [3]
Immediately afterwards the Cuban Government complained to the U.S. FAA and requested action to prevent violations of Cuban sovereignty and stated, “Any craft proceeding from the exterior that invades by force our sovereign waters could be sunk and any aircraft downed.” In response the U.S. State Department reiterated its warning that U.S. planes should not violate Cuban airspace and quoted the Cuban warning.
Nevertheless in January 1996 BTTR flew twice to Cuba and presumably over international waters dropped anti-Castro leaflets that landed in Havana. Again Cuba requested the U.S. to stop these flights. [4]
On February 24, 1996, three light civilian U.S. planes that were operated by BTTR flew from Miami to Havana. All three at one time were in international airspace close to Cuba’s territorial waters. One of them clearly flew into Cuban airspace, but was not shot down. The other two civilian planes were shot down by Cuban MIG fighters, killing three Cuban-American citizens and one non-U.S. citizen. Cuba defended its actions by contending that the planes were shot down within the territorial limits of Cuba whereas the U.S alleged that the downings had occurred over international airspace.[5] According to one of the judges in the latest 11th Circuit opinion, these two planes did not enter Cuban airspace and were shot down in international airspace, 4.8 and 9.5 miles (land miles or nautical miles?] from Cuban airspace.[6]
The concept of national and international airspace is complicated. National airspace is the area or portion of the atmosphere above a country’s territory that is controlled by that country and above a country’s territorial waters, which generally are considered to be 12 nautical miles [or about 13.8 land miles] out from the coastline of the nation. All other airspace is known as ‘international airspace.’
In any event, the two planes that were shot down were at least very close to Cuban airspace after a history of such planes entering Cuban airspace and dropping leaflets and medals and potentially dropping bombs.
On December 17, 1997, a U.S. district court entered a default judgment against Cuba for $187 million for the deaths of three of the four pilots.[7]
The Cuban Five’s Actions
The Cuban Five were not directly involved in any of the above incidents. They did not shoot down the private plane on February 24, 1996. They were not in any of the Cuban MIG fighter jets that were involved in that incident.
Instead, according to the latest 11th Circuit opinion that is discussed below, the evidence at trial established that the Five were in the U.S. as agents of the Cuban Directorate of Intelligence and members of its Wasp Network that was organized for espionage in southern Florida. The Network was to gather and report information regarding operations of U.S. military facilities, U.S. political and law enforcement agencies and U.S. nongovernmental organizations supporting regime change in Cuba, including BTTR. To that end, the Five attempted to penetrate the Miami facility of the U.S. Military’s Southern Command while one of the Five obtained employment at the Key West U.S. Naval Air Station and reported information about the Station to the Cuban Government. [8]
The 11th Circuit also stated that the trial evidence established that the mission of one of the Wasp Network’s operations, known as Operation Escorpion, was to stop flights to Cuba by BTRR.
According to the Cuban Government, the Cuban Five are patriots and Heroes of the Cuban Revolution who were acting to save American and Cuban lives from terrorists operating in Miami and to defend Cuba from attacks from the U.S.
What Happened in the U.S. Criminal Process?
In September 1998, the Cuban Five were arrested in Miami. A federal grand jury in Miami indicted them on charges of conspiracy to commit murder (of the four pilots); conspiracy to commit espionage; conspiracy to commit crimes against the U.S.; use of false identity and documentation; and being unregistered agents of a foreign government. Each of them then spent 17 months in solitary confinement before trial.[9]
In November 2000, the trial of the Cuban Five started in federal court in Miami. During the course of pre-trial proceedings the defense made five unsuccessful motions to change venue to move the trial away from Miami because of intense public hostility towards the Cuban Five.
In June 2001 the trial ended in Miami federal court with a jury verdict holding the Cuban Five guilty on all counts.[10] As none of the Cuban Five had been directly involved in shooting down the airplane in 1996, the key legal issue on the conspiracy to commit murder of three men who died in the airplane’s crash was the U.S. legal principle of conspiracy. Under U.S. law (U.S.C. sec. 1117), “If two or more persons conspire to [murder], and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life.” In simple terms, the overt act of shooting down the plane is attributed or imputed to all members of the conspiracy even though some were not directly involved in that act.
In December 2001 (three months after 9/11), the Miami federal court sentenced the Cuban Five to the previously mentioned sentences. [11] (At about the same time, the Cuban legislature declared that the Five were Heroes of the Revolution.)
In August 2005, a three-judge panel of the U.S. Circuit Court of Appeals for the Eleventh Circuit in Atlanta unanimously reversed the convictions on the ground that is was reversible error for the trial court to deny the motions for change of venue out of Miami.[12]
A year later, August 2006, however, the entire 11th Circuit en banc, 10 to 2, overturned the panel’s decision and affirmed the trial court’s denial of the motions for change of venue and for a new trial, but remanded the case to the previous three-judge panel of the 11th Circuit to decide the following other issues on appeal:[13]
alleged prosecutorial misconduct regarding the testimony of a government witness and during closing argument;
alleged improper use of the Classified Information Procedures Act;
alleged improper denial of a motion to suppress fruits of searches under the Foreign Intelligence Surveillance Act;
alleged Batson violations by the prosecution in striking prospective jurors on the basis of race;
alleged insufficiency of the evidence regarding the conspiracy to transmit national defense information to Cuba, alleged violations of the Foreign Services Registration Act, and conspiracy to commit murder;
alleged improper denial of a motion to dismiss Count 3 based on Foreign Sovereign Immunities Act jurisdictional grounds;
alleged improper denial of jury instructions regarding specific intent, necessity, and justification; and
alleged sentencing errors.
On June 4, 2008, that three-judge panel of the 11th Circuit resolved these issues in 99 pages of opinions. With one exception, the panel unanimously rejected all of the Five’s arguments on the merits.[14] The exception was the sufficiency of the evidence for the conviction of Hernandez for conspiracy to commit murder, where the decision to affirm the conviction was 2 to 1. The dissenter concluded that there was insufficient evidence for this charge because the Government had not proved beyond a reasonable doubt that he had agreed to have another agent shoot down a BTTR plane in international airspace, which is illegal, as opposed to shooting down a plane in Cuban airspace, which is legal. Another judge conceded that this issue was very close.[15]
The three-judge court also vacated the sentences of three of the Five and remanded the case forresentencing, presumably for shorter periods. The three are Labañino and Guerrero who had been sentenced to life imprisonment and Gonzalez who had received a 19 years sentence.[16]
On September 2, 2008, the 11th Circuit denied the Five’s petition for rehearing and rehearing en banc (the entire 11th Circuit). On June 15, 2009, the U.S. Supreme Court denied their petition for review (denial of certiorari).[17]
On October 13, 2009, the district court reduced the sentence of Guerrero, under an agreement between the defendant and the prosecution, from life to 262 months. On December 8, 2009, the district court reduced the sentence of Labañino from life to 30 years. On that same date (December 8, 2009), the sentence of Gonzalez was reduced from 19 years to 18 years.[18] Gonzalez subsequently completed his sentence and was returned to Cuba.
After their resentencing, the three Cubans released a statement reiterating their claims of innocence and affirming, ¨We did not give one inch in our principles, decorum and honor, always defending our innocence and the dignity of our homeland.¨in addition, they asserted that they continued to reject the U.S. government´s proposal for more lenient sentences in exchange for collaboration with the U.S.¨[19]
Reactions to the Release of the Three Cubans
When the three men returned to Cuba on December 18th after their release from U.S. prison, they were welcomed home by Cuban President Raúl Castro. A Cuban reporter said of this celebration, “The Cuban sky, which they had so longed to see, offered the first welcome to our heroes, then the breeze, the feeling of freedom… hard for their eyes to believe what was unfolding before them, hard for their hearts to bear so much joy, to see the radiant, euphoric people opening their arms to their sons, and offering them a cup of coffee. Eleven million tears were shed as the news was announced, and the photos began to appear, with Raúl welcoming them to the homeland. Who didn’t feel goosebumps along with Elizabeth as she embraced [her husband] Ramón. Who was not moved as Gerardo gazed into [his wife] Adriana’s face, and who did not feel the warmth shared by Mirta and her son Tony [upon seeing her husband Antonio Guerrero]… And what an avalanche of emotions hearing the exclamations, including, “Para lo que sea”, (For whatever may be needed), offering an exemplary lesson of genuine patriotism. Outside, in the streets, a sea of human beings welcomed them home, every corner of the nation was full of joy. Feeling the country’s greatness, it is no lie that Cubans feel our hearts swelling.”
Afterwards the three had a joyous reunion with their previously released fellow Cuban Five members.
Members of the Cuban-exile community in Florida reportedly were most upset with the release of Hernandez. Given his conviction for conspiracy to murder and his double life sentence plus 15 years, that reaction is understandable. On the other hand, he personally did not shoot down the two BTTR planes causing the death of their occupants and was not personally involved in any other way in that incident. In addition, as at least one U.S. judge observed, there was evidence that Hernandez did not understand or agree that the Cuban air force would shoot down a BTTR plane in international air space, which is illegal, as opposed to shooting down such a plane if it entered Cuban air space, which is legal. Moreover, Cuba had protested the prior BTTR flights to the U.S. authorities and asked the U.S. to stop such flights. Finally Hernandez had been in U.S. jail and prison for over 16 years, which is a significant punishment. Therefore, it should be possible to understand that he is not as evil as suggested by his being labeled as a convicted murderer or as a convicted murder conspirator.
The other two–Guerrero and Labañino–after 16 years in jail and prison were nearing the end of their sentences, and the commutation of their sentences to time served seemed to be less controversial to the Cuban-exile community in Florida. They already had served their sentences in substantial part.
For this blogger, I see the commutation of the sentences of Hernandez and the other two Cubans and their release from U.S. prison and return to Cuba as the price that had to be paid by the U.S. in order to obtain Cuba’s simultaneous release of the U.S. spy from Cuban prison. He was Rolando Sarraff Trujillo, a Cuban who was a cryptologist in Cuba’s Directorate of Intelligence. He had provided U.S. officials with the codes being used by the Cuban Five and the other members of the Wasp Network that lead to their being arrested in 1998. (Mazzetti, Schmidt & Robles, Crucial Spy in Cuba Paid a Heavy Cold War Price, N.Y. Times (Dec. 18, 2014); Assoc. Press, Spy’s Parents Search for Son After Cuba-U.S. Deal, N.Y. Times (Dec. 18, 2014).) Supposedly unrelated was Cuba’s simultaneous release of U.S. citizen Alan Gross. Obtaining Cuba’s releases of these prisoners and achieving the overall U.S.-Cuba agreement to normalize diplomatic relations and to start resolving the many bilateral issues that have accumulated over the last fifty-plus years are significant. These benefits alone, in my judgment, justify the commutations and releases of the last three of the Cuban Five.
Moreover, the previous discussion of the precipitating circumstances to the downing of the two BTTR planes and the deaths of their four occupants should help us see the Cuban perspective. The island was being threatened by previous BTTR flights and had raised legitimate complaints to U.S. authorities about those flights, all to no avail. As a result, the Cuban government was left to its own devices to protect itself, including trying to obtain information about future BTTR flights with the Wasp Network investigations of the BTTR in Florida. Moreover, the exact location of the planes when they were shot down was disputed with the Cubans asserting it was in Cuban territorial air space, which was legal. These considerations, in my opinion, provide additional reasons justifying the U.S. commutations and releases.
As a retired lawyer whose practice involved extensive experience in litigating civil cases in U.S. federal courts, I have a general respect for those courts and the U.S. civil and criminal judicial procedures, and the prior discussion of the Cuban Five´s case in those courts convinces me that the Five had competent and dedicated defense lawyers. I have not attempted a review of the extensive trial record in order to reach my own conclusions on the legitimacy of the many complaints raised about that trial by the Cuban Five support network, by the U.N. Working Group on Arbitrary Detentions and by the amicus curiae briefs submitted to the U.S. Supreme Court from Nobel laureates, international human rights groups and a former U.N. High Commissioner for Human Rights and President of Ireland, Mary Robinson. Nevertheless, the mere existence of those complaints and concerns, without investigating or conceding their merits, are other factors that support, in my judgment, the commutations and releases of the three Cubans by eliminating these international and domestic irritants.
===============================================
[1] They are Antonio Guerrero Rodriguez, Fernando Gonzalez Llort (Rueben Campa), Gerardo Hernandez Nordelo (Manuel Viramontes), Ramón Labañino Salazar (Luis Medina) and Rene Gonzalez Sechweret. The “Cuban 5” website gives a lot of information about them and their case. http://www.thecuban5.org/who-are-the-cuban-5/
[2] Slip Opinions at 84-90, United States v. Campa, 529 F.3d 980 (11th Cir. June 4, 2008) (J. Kravitch, concurring and dissenting).
[3] Rohter, Exiles Say Cuba Downed 2 Planes and Clinton Expresses Outrage, N.Y. Times, Feb. 25, 1996.
[4] Rohter, Exiles Say Cuba Downed 2 Planes and Clinton Expresses Outrage, N.Y. Times, Feb. 25, 1996.
[5] Rohter, Exiles Say Cuba Downed 2 Planes and Clinton Expresses Outrage, N.Y. Times, Feb. 25, 1996; Rohter, Cuba Blames U.S. in Downing of Planes, N. Y. Times, Feb. 27, 1996; Crossette, U.S. Says Cubans Knew They Fired on Civilian Planes, N. Y. Times, Feb. 28, 1996; Crossette, Cuba, Citing Earlier Intrusions, Defends Downing of 2 Cessnas, N. Y. Times, March 7, 1996.
[9] E.g., Cuban Five, http://en.wikipedia.org/wiki/Cuban_Five; The incredible story of five men imprisoned in the United States for fighting terrorism, Judtyicia/Justice.
[10] Id.; Atlanta and the Cuban Five: A Long March Towards Justice at 1-31 (Editora Politica: Havana, 2005)[“Atlanta“]; Fernandez, United States vs. The Cuban Five: a judicial cover-up at 1-134 (Editorial Capitan San Luis: Havana 2006)[“Fernandez“]; The Perfect Storm: The Case of the Cuban Five at 85-108 (Editora Politica: Havana, 2005) [“Storm“].
[11] Id.; Atlanta at 32-51; Fernandez at 135-82; Storm at 108-09, 149-63.
[12]United States v. Campa, 419 F.3d 1219 (11th Cir. 2005) (No. 01-17176), vacated & ordered to be heard en banc, 429 F.3d 1011 (11th Cir. 2005).
[13]United States v. Campa, 459 F.3d 1121, 1126 n.1 (11th Cir. 2006)
[17]Campa v. United States, No. 08-987 (U.S. Sup. Ct. June 15, 2009).
[18] Anderson, Deal gives man accused in Cuban Five spy case reduced sentence, Miami Herald, Oct. 10, 2009; Urbina, Judge Reduces Sentence for One of Cuban Five, N.Y. Times, Oct. 13, 2009, ; Anderson, Cubans get reduced sentences for spying in US, Washington Post, Dec. 8, 2009; BBC News, US cuts Cuban spies’ jail terms, Dec. 12, 2009.
[19]Statement by Antonio, Rámon and Fernando: We will continue until the final victory, Granma (Dec. 9, 2009); The U. S. administration was forced to recognize that we did not endanger national security, Granma (Dec. 9, 2009).
