Results of 9/11/20 Hearing in George Floyd Criminal Cases

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.”

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[1]  Xiong & Olson, Judge disqualifies some in Mike Freeman’s office for ‘sloppy work’ in George Floyd case, StarTribune (Sept. 11, 2020); LIVE UPDATES: Tentative 2-week jury selection, 4-week trial format for George Floyd case, kstp.com (Sept. 11, 2020); Judge In Floyd Case Disqualifies Members of Hennepin co. Attorney’s Office, minnesota.cbslocal.com (Sept. 11, 2020); Olson, Protestors confront former Minneapolis police officers with shouts of ‘murderer,’ StarTribune (Sept. 11, 2020); Protestors Shout At Former MPD Officers As They Exit Pretrial Hearing in George Floyd Case, minnesota.cbslocal.com (Sept. 11, 2020); Collins & Williams, George Floyd killing: Judge disqualifies Freeman from cops’ trial, MPRNews (Sept. 11, 2020); Read Hennepin County Attorney Mike Freeman’s response to being disqualified from George Floyd case, StarTribune (Sept. 11, 2020); Furber, Arango & Eligon, Police Veteran Charged in George Floyd Killing Had Used Neck Restraints Before, N.Y. Times (Sept. 11, 2020); Bailey, Prosecutors allege former Minneapolis officer used neck restraint in several other cases before George Floyd’s death, Wash. Post (Sept. 11, 2020); George Floyd’s Family Lawyer Pushes Back on Police Claims (video), N.Y.Times (Sept. 11, 2020); Officers charged in George Floyd killing seek to place blame on one another, Guardian (Sept. 11, 2020).

[2] State’s Notice of Intent To Offer Other Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin county District Court Sept. 10, 2020).

[3] Revised Length of Time for Minneapolis Police Restraint of George Floyd. dwkcommentaries.com (June 18, 2020).

 

Pandemic Journal (# 7): Latest Statistics  

The morning news on April 2 has these COVID-19 statistics for the world: 946,000 confirmed cases and 45,000 deaths. The most deaths have been in Italy at 13,155 and Spain at 10,003.[1]

The U.S. Situation[2]

The U.S. now has the most cases in the world with 214,461 and the third-most deaths at 4,841. In addition, the federal government is projecting U.S. total deaths (best case) to be 100,000 to 240,000

Adding to the gravity of the situation in the U.S., the federal government’s “emergency stockpile of respirator masks, gloves and other medical supplies is running low and is nearly exhausted due to the coronavirus outbreak, leaving the Trump administration and the states to compete for personal protective equipment in a freewheeling global marketplace rife with profiteering and price-gouging, according to Department of Homeland Security officials involved in the frantic acquisition effort.”

According to an anonymous DHS  official, ““The stockpile was designed to respond to a handful of cities. It was never built or designed to fight a 50-state pandemic. This is not only a U.S. government problem. The supply chain for PPE worldwide has broken down, and there is a lot of price-gouging happening.”

Moreover, thousands more of the ventilators in the federal stockpile do not work and are unavailable “after the contract to maintain . . .  [them] lapsed late last summer, and a contracting dispute meant that a new firm did not begin its work until late January.”

State of Minnesota Situation [3]

 My State of Minnesota has 689 cases and 17 deaths as it struggles to acquire needed supplies and equipment. The peak of our cases is now expected between early May and early June followed by the highest need for hospital beds.

“Several hospitals are adding more beds on their campuses. ‘The limiting factor is the availability of ventilators to be able to equip those rooms,’ Jan Malcolm, the State Health Commissioner, said. Operating rooms could also be converted to intensive care because many of them have ventilators. The state is also scouting locations for temporary hospitals, using buildings, such as closed nursing homes, that could house patients who don’t need critical care and are not infected with the coronavirus. The goal is to add 2,750 temporary beds, with 1,000 of them in the metro area.

According to Lee Schafer, a business columnist for the StarTribune, Minnesota’s hospital system is designed to handle “a normal patient load” because “unused capacity costs money” and  because “health care in this state was efficient.”

Conclusion

All of the these developments  makes a Minnesota senior citizen currently in overall good health like this blogger realize that if he contracts the COVID-19 virus during the next 60 days or so, he will enter the hospital system at its most stressful period. Therefore, it is even more important now to maintain six feet of separation from other people, to avoid groups of 10 or more people, to cover your mouth when you cough, to wash your hands frequently and to maintain physical fitness. Finally make sure your wills, trust agreements and health care directives are up to date. And study the Protective Orders for Life Sustaining Treatment (POLST) and determine your choices on that form.[4]

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[1] Coronavirus Map: Tracking the global Outbreak, N.Y. Times (April 2, 2020).

[2] N. 1 supra; Miroff, Protective gear in national stockpile is nearly depleted, DHS officials  say, Wash. Post (April 1, 2020); Miroff, Gloves, masks and ventilators near gone, StarTribune (April 2, 2020) (print edition); Madhani, Freking & Alonso-Zaldivar, Trump says ‘life and death’ at stake in following guidelines, StarTribune (April 1, 2020).

[3] Tracking coronavirus in Minnesota, StarTribune (April 1, 2020); Howatt, Minnesota COVID-19 cases increase by 60 to 689 with 5 more deaths, StarTribune (April 2, 2020); Schafer. Here’s why Minnesota doesn’t have enough hospital beds right now, StarTribune (April 2, 2020).

[4] See these posts to dwkcommentarie.com: Pandemic  Journal (# 5): POLST (Provider Orders for Life-Sustaining Treatment) (Mar. 29, 2020); Pandemic Journal (# 6): Maintaining Physical Fitness (April 1, 2020). Here are the earlier posts in this ongoing series: Pandemic Journal (# 1): Kristof and Osterholm Analyses (Mar. 23, 2020); Pandemic Journal (# 2): Westminster Presbyterian Church Service (03/22/20) (Mar. 24, 2020); Pandemic Journal (# 3): 1918 Flu (Mar. 27, 2020); Pandemic Journal (# 4): “Life” Poem (Mar. 28, 2020);

 

 

Pandemic Journal (# 1): Kristof and Osterholm Analyses

Sunday morning’s news outlets reported that worldwide there now are over 300,000 persons who have contracted the coronavirus disease (COVID-19)  and at least 12,944 have died of this infection while the U.S. statistics are more than 24,300 cases and more than 370 deaths. My State of Minnesota has 169 confirmed cases and its first death while the state’s most populous county (Hennepin with the City of Minneapolis), where I live, has  57 confirmed cases and no deaths.

This blogger has decided to periodically post his reactions to living through this pandemic.

This first post will focus on some of today’s overall perspectives from those who know about what is happening: Nicholas Kristof, a New York Times columnist, who has talked with a lot of experts, and Michael Osterholm, now at the University of Minnesota as Regents Professor, McKnight Presidential Endowed Chair in Public Health, the Director of the Center for Infectious Disease Research and Policy (CIDRAP), Distinguished Teaching Professor in the Division of Environmental Health Sciences, School of Public Health, a professor in the Technological Leadership Institute, College of Science and Engineering, and an adjunct professor in the Medical School.[1]

Other posts will discuss other important developments in the crisis as well as his personal reactions to these problems.

Kristof’s Analysis[2]

One of the most disturbing Sunday articles was by Nicholas Kristof, who set forth what experts are seeing as the “worst case” and “best case” for the U.S. in March 2021, one year from now.

Worst Case

“More than two million Americans have died from the new coronavirus, almost all mourned without funerals. Countless others have died because hospitals are too overwhelmed to deal adequately with heart attacks, asthma and diabetic crises. The economy has cratered into a depression, for fiscal and monetary policy are ineffective when people fear going out, businesses are closed and tens of millions of people are unemployed. A vaccine still seems far off, immunity among those who have recovered proves fleeting and the coronavirus has joined the seasonal flu as a recurring peril.”

The U.S. “badly bungled testing, and President Trump repeatedly dismissed the coronavirus, saying it was ‘totally under control’ and ‘will disappear,’ and insisting he wasn’t ‘concerned at all.’ . . .The United States has still done only a bit more than 10 percent as many tests per capita as Canada, Austria and Denmark.”

“By some counts, the United States is just eight days behind Italy on a similar trajectory, and it’s difficult to see how America can pirouette from the path of Italy to that of South Korea. The United States may already have 100,000 infected citizens — nobody knows. That’s too many to trace. Indeed, one can argue that the U.S. is not only on the same path as Italy but is also less prepared, for America has fewer doctors and hospital beds per capita than Italy does — and a shorter life expectancy even in the best of times.”

“Mitre, a nonprofit that does work on health care, calculated that coronavirus cases are doubling more quickly in the United States than in any other country it examined, including Italy and Iran.” Two experts’ models suggest “that up to 366,000 I.C.U. beds might be needed in the United States for coronavirus patients at one time, more than 10 times the number available.”

Therefore, the U.S. “should be urgently ramping up investment in vaccines and therapies, addressing the severe shortages of medical supplies and equipment, and giving retired physicians and military medics legal authority to practice in a crisis.” But that is not happening. Moreover, the U.S. “isn’t protecting health workers with the same determination” as China did after its initial failure to do so.“In the worst-case scenario, will social services collapse in some areas? Will order fray? Gun sales are increasing, because some people expect chaos and crime.” The U.S. “is in a weaker position than some other countries to confront the virus because it is the only advanced country that doesn’t have universal health coverage, and the only one that does not guarantee paid sick leave. With chronic diseases, the burden of these gaps is felt primarily by the poor; with infectious diseases, the burden will be shared by all Americans.”

Best Case

“Life largely returned to normal by the late summer of 2020, and the economy has rebounded strongly. The United States used a sharp, short shock in the spring of 2020 to break the cycle of transmission; warm weather then reduced new infections and provided a summer respite for the Northern Hemisphere. By the second wave in the fall, mutations had attenuated the coronavirus, many people were immune and drugs were shown effective in treating it and even in reducing infection. Thousands of Americans died, mostly octogenarians and nonagenarians and some with respiratory conditions, but by February 2021, vaccinations were introduced worldwide and the virus was conquered.”

According to Dr. Larry Brilliant, an epidemiologist, “The best case is that the virus mutates and actually dies out.” Another expert,  Dr. Charles G. Prober, a professor at Stanford Medical School, agreed. Two other lethal coronaviruses, SARS and MERS, both petered out, and that is possible here. “My hope is that Covid-19 will not survive.”

“Several countries have shown that decisive action can turn the tide on Covid-19, at least for a time.” This especially is true for Singapore, Taiwan, South Korea and Hong Kong that “responded with the standard epidemiological tool kit: vigilance and rapid response, testing, isolating the sick, tracing contacts, quarantining those exposed, ensuring social distancing and providing reliable information. They did not shut down their entire countries.”

It is possible that the U.S. and other Northern Hemisphere nations soon will experience warmer weather that will dampen the coronavirus as was true with two of the four other coronaviruses.

“There is hope that some antiviral medicines currently in clinical trials will be successful.”

Finally there is hope that “the coronavirus may be less lethal than was originally feared, so long as health care systems are not overwhelmed.”

Yet another expert, “Dr. Tara C. Smith, an epidemiologist at Kent State University, summed up all of these considerations: ‘I’m not pessimistic. I think this can work.’ She thinks it will take eight weeks of social distancing to have a chance to slow the virus, and success will depend on people changing behaviors and on hospitals not being overrun. ‘If warm weather helps, if we can get these drugs, if we can get companies to produce more ventilators, we have a window to tamp this down.’”

Our Responses

“This crisis should be a wake-up call to address long-term vulnerabilities. That means providing universal health coverage and paid sick leave.”  The coronavirus legislation adopted last week does not do that. “It guarantees sick leave to only about one-fifth of private-sector workers. It’s a symbol of the inadequacy of America’s preparedness.”

“More broadly, the United States must remedy its health priorities: We pour resources into clinical medicine but neglect public health. . . . The United States has a decentralized and spotty public health system, and it has endured painful budget cuts, yet historically public health has saved more lives than clinical medicine.”

Osterholm’s Perspective[3]

U.S. Difficulty in Appreciating Risk of Pandemics

First, the U.S. government and citizens “had almost this sense of invincibility that we had a border that would not allow such infectious-disease agents to penetrate … . We, of course, know that is folly. A microbe anywhere in the world today can be anywhere in the world tomorrow.”

Second, “we tend to lack creative imagination. {Yet those ]who knew health care knew that health care [had been] carved down to the bone for which there was no resiliency of any substantial nature, no excess capacity, no monies to stockpile large volumes of protective equipment.”  In addition, there has been “no real understanding of the vulnerability of this country outsourcing all of its drug supply manufacturing to places like China.”

Third, “I think it’s human nature to not want to believe this” risk.

This January Osterholm wrote a notification for the CIDRAP leadership forum, saying, “ “I now am absolutely convinced this is going to be a pandemic. This will be a worldwide epidemic. We will see major transmission around the world. And what has happened in Wuhan [China] will happen in other places.” But this warning had no impact on U.S. policies.

 U.S. Needs ‘New Normal’

 U.S. and others need to find a new normal, a way to live with COVID-19. We “can’t shelter in place for 18 months. This isn’t going to work.” Instead, we need a national goal.

We must “make every effort to … protect those most vulnerable. And we [need to] continue to emphasize social distancing, … [and] keep the hospitals from being overrun. We [must] keep doing that until we get a vaccine. . . . It won’t be perfect. Some people will get sick, some may die.”

“People are really concerned. They’re scared … but they’re not panicking. They want straight talk.” They want the truth, and they are not getting it from the Trump administration.

“[A recent British scientific paper] said crowd size really makes no difference. We really have no data on crowd size. Their modeling says we have to have contact … that if you shook hands with all 50,000 people in an arena, you got a problem. But if you didn’t, the risk of transmission is not nearly as great as people think it is. We also don’t have good data that we have major transmission in schools from kids to kids and that they take it home to Mom and Dad.”

“Singapore did not close schools. Hong Kong did. We saw no difference. . . . {On the other hand,] I do know it makes a difference in saving lives in a hospital when you take out 20% of nurses, doctors, respiratory therapists who can’t work because they’re at home [to watch their kids]. I know that is a risk in putting grandparents in so that some can keep working.”

He is hopeful about some new potential treatments for COVID-19, such as chloroquine, that are being studied, but that, he says, is not a strategy.

Conclusion

As a retired lawyer in his 80’s with no experience or expertise on these global health issues, I concur in Professor Osterholm’s assertion that others and I want the truth from our government and national and local leaders. That truth will include admissions that they do not yet know certain important factors, that they are investigating those issues in a focused, disciplined, scientific manner and that the rest of us need to follow developments in the pandemic and follow the straightforward instructions: wash your hands frequently and carefully, maintain at least six-feet social distancing with other people and do not join groups of (10?) or more people. As noted above, other posts will explore my personal reactions to all of this situation.

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[1] Osterholm also currently holds, and has held, other important positions in this field and is the co-author of “the 2017 book, Deadliest Enemy: Our War Against Killer Germs, in which he not only details the most pressing infectious disease threats of our day but lays out a nine-point strategy on how to address them.” (CiDRAP, Michael T. Osterholm, PhD, MPH.)

[2] Kristof, The Best-Case Outcome for the Coronavirus, and the Worst, N.Y. Times (Mar. 20, 2020).

[3] Burcum, Coronavirus pandemic: What’s ‘normal’ now? What’s next? An interview with Michael Osterholm, StarTribune (Mar. 22, 2020). /