Derek Chauvin – dwkcommentaries

Minneapolis Police Chief Defends Derek Chauvin’s Conviction For Murder of George Floyd

Brian O’Hara, the Chief of the Minneapolis Police Department, declares in the StarTribune. “Millions of us watched in horror as Derek Chauvin pressed his knee on Floyd’s neck for more than nine minutes, ignoring his cries for help, the pleas of bystanders and ultimately the absence of any movement from Floyd’s body. Police officers and even police union leadership around the country condemned Minneapolis for allowing this to happen and for causing us problems in cities around the world that summer. We all knew what we saw, and we all knew it was wrong.” Here are O’Hara’s other comments on this subject:[1]

“Chauvin’s actions were indefensible, and his choice to kneel on a handcuffed, unresponsive man’s neck for an extended period was not in line with any legitimate police training in the civilized world.”
“During Chauvin’s trial, multiple experts — including Blackwell and several otherMPD officers — testified that what he did was not taught or condoned by MPD. This wasn’t just opinion. It was a fact backed up by training records, other courageous officers’ testimony, and the public condemnation of Chauvin’s actions by dozens of his own colleagues. In the immediate aftermath of Floyd’s death, 14 MPD officers signed an open letter to the public explicitly stating that Chauvin’s actions ‘were not the values we were trained in’ and that his use of force was completely unjustified.”
“Now, nearly five years later, some are attempting to rewrite history by attacking Assistant Chief Katie Blackwell, a longtime Minneapolis police officer and one of the highest-ranking enlisted women in the Minnesota National Guard, for her testimony in Chauvin’s criminal trial. Alpha News and reporter Liz Collinhave accused Blackwell of lying when she stated that Chauvin’s actions were not part of the Minneapolis Police Department’s training. But let’s be clear: Chauvin’s actions were indefensible, and his choice to kneel on a handcuffed, unresponsive man’s neck for an extended period was not in line with any legitimate police training in the civilized world.”
These recent attacks on Blackwell’s testimony are prompted “to sow doubt about the legitimacy of Chauvin’s conviction and to undermine efforts to reform policing in Minneapolis.”
But “Chauvin was not a scapegoat — his actions betrayed the values of our noble profession. Blackwell, in her difficult role as a witness, simply did what any professional and any true leader would do: She told the truth. She testified to what every reasonable officer knows — that kneeling on the neck of a handcuffed, non-resistant suspect for more than nine minutes, to the point where he is lifeless, is not proper policing, nor is it a trained technique.”
“We must remain focused on what truly matters: building a police department of integrity, one that is able to self-correct. This starts with recognizing that Chauvin acted well outside the bounds of his training and his duty. It also means defending those, like Assistant Chief Blackwell, who courageously spoke out against misconduct rather than enabling those who would excuse it.”

The recent controversy over Chauvin’s conviction and the criminal trial testimony of Katy Blackwell have been discussed in another blog post and newspaper articles.[2]

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[1] O’Hara, The truth about the tragic actions of Derek Chauvin, StarTribune (Feb.11, 2025). This blog has an extensive number of posts about the trials and convictions of Chauvin and the other three Minneapolis policemen involved in the killing of Mr. Floyd. (List of Posts to dwkcommentaries—Topical: George Floyd Killing.)

[2] More Litigation About the George Floyd Killing, dwkcommentaries.com (Jan. 17, 2025); Day, High-ranking Minneapolis Police Department officer sues Liz Collin, Alpha News for defamation, StarTribune (Oct. 15, 2024); MPD Assistant Chief Katie Blackwell calls Alpha News ‘extremists in ‘garbage’ lawsuit. Alpha News (Oct. 15, 2024);Day, Defamation lawsuit against ‘The Fall of Minneapolis’ documentary faces high legal hurdles, StarTribune (Oct. 25, 2024); 14 current and former Minneapolis cops say Assistant Chief Katie Blackwell LIED during trial of Derek Chauvin, The Post Millennial, (Jan. 7, 2025); Over a dozen current and former officers say they believe MPD’s Katie Blackwell perjured herself during Derek Chauvin trial, Law Officer (Jan. 7, 2025); Day, Ex-MPD officers, politicians defend ‘ The Fall of Minneapolis,’ Liz Collin in defamation lawsuit, StarTribune (Jan. 7, 2025); Director of ‘The Fall of Minneapolis’ responds to defamation lawsuit after bombshell court filings, Alpha News (Jan. 8, 2025);Packed courtroom listens as Alpha News seeks dismissal of defamation lawsuit brought by Minneapolis police officer, StarTribune (Feb. 7, 2025); Gorkowski, Judge hears motion to dismiss defamation lawsuit against Alpha News, Liz Collin, Alpha News (Feb. 8, 2025).

Two Former MPD Officers Have Completed Their Criminal Imprisonment for Involvement in George Floyd Killing

Two of the four Minneapolis Police Department officers who were convicted for involvement in the 2020 murder of George Floyd have completed their criminal imprisonment for same.[1]

On January 15, 2026, J. Alexander Kueng was released from a low-security federal prison in Lisbon, Ohio after completing his sentence and now is going on supervised release until March 2026.

Thomas Lane was released from prison last August followed by another year of supervised release.

Tou Thao remains in prison, but is scheduled to be released this November.

The leader of this group of MPD officers, Derek Chauvin, remains in prison while he is seeking a new trial, which will be discussed in a future post.

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[1] Walsh & Norfleet, One of ex-police officers convicted for George Floyd’s murder is released from prison, StarTribune (Jan.15, 2025).;Ex-Minneapolis officer thomas Lane, convicted in George Floyd’s killing, is released from prison, StarTribune (Aug. 20, 2024).

Federal Court Allows Chauvin’s Expert Examination of George Floyd’s Heart Tissue

Derek Chauvin now is in federal prison for joint service of Minnesota state and federal court convictions for the murder of George Floyd. The state court conviction was based on a jury guilty verdict after trial while the federal conviction was based on Chauvin’s guilty plea. For both of those cases, Chauvin’s attorney was Eric Nelson, but Chauvin’s current attempt to invalidate those convictions is based upon the claim by his new lawyer, Robert Meyers, an assistant federal defender.

The last time this blog examined this case, it discussed (1) the November 13, 2023 Chauvin motion (without legal counsel) to vacate his conviction and sentencing based upon the opinion of a pathologist (Dr. William Schaetzel) who had never examined the Floyd corpse, but believed that Floyd did not die from asphyxia from Chauvin’s actions, but from complications of a rare tumor (paraganglioma) that can cause a fatal surge of adrenaline; (2) the January 12, 2024, federal prosecution’s opposition to that motion: (3) the July 31, 2024, Chauvin Reply Brief (with counsel); and (4) the August 14, 2024, federal Government’s Surreply. Based upon review of these papers, this blog thought the Chauvin motion would be denied.[1]

That denial, however, did not happen, and on December 13, 2024, Chauvin (with counsel) filed a motion for the following discovery:

“Any and all hitology slides of Floyd’s heart, tissue samples of Floyd’s heart, tissue blocks containing heart tissue from Floyd, recut sections of all autopsy tissue histology slides relating to Floyd’s heart, related to the criminal case against Derek Chauvin for the death of George Floyd possessed by the Hennepin County Medical Examiner’s Office (HCMEO), and any entity that the HCMEO contracted with that has these materials.”
“Photos taken of George Floyd’s heart.”
“Any and all vitreous fluid/aqueous humor, postmortem blood antemortem blood, and urine contracted with that has these materials, HHC (autopsy report notes that antemortem blood was taken at HHC), and NMS Labs (NMS Labs conducted the toxicology testing and produced the toxicology report, and thus they may still have samples of the blood and urine that they tested (DE 544-1 at 25-26)). Chauvin requests quantities of these fluids sufficient to test the concentration of fractionated catecholamines and metanephrine levels present.”[2]

Three days later (December 16, 2024), U.S. District Court Judge Magnuson granted this Chauvin motion. That Order stated, “Given the significant nature of the criminal case that Mr. Chauvin was convicted of, and given that the discovery that Mr. Chauvin seeks could support Dr. Schaetzel’s opinion of how Mr. Floyd died, the Court finds that there is good cause to allow to take the discovery he seeks. That court order also provided that Chauvin’s team may take discovery of any histology slides of Floyd’s heart, tissue samples of his heart, tissue blocks containing heart tissue from Floyd and recut sections of all autopsy tissue slides relating to his heart. Chauvin’s lawyers are also allowed to inspect and make copies of any photographs taken of Floyd’s heart and they can take quantities of certain fluids for testing. That court order also provided that Chauvin’s team may take discovery of any histology slides of Floyd’s heart, tissue samples of his heart, tissue blocks containing heart tissue from Floyd and recut sections of all autopsy tissue slides relating to his heart. Chauvin’s lawyers are also allowed to inspect and make copies of any photographs taken of Floyd’s heart and they can take quantities of certain fluids for testing. Accordingly, the court GRANTS Mr. Chauvin’s Motion.”[3]

The very next day (December 17), the Government filed its Motion To Reconsider Defendant’s Motion for Discovery. It asserted that the “claims of ineffective assistance of counsel fail on their merits . . . and that Defendant is not entitled to relief.” Therefore, the Court should reconsider and deny Chauvin’s motion. But if the court denies that Government’s request for reconsideration, the Court should grant reciprocal discovery by the Government.”[4]

Two days later (December 19), the District Court issued another Order, stating that it “is not persuaded by the Government’s arguments . . .and “the Order granting Defendant’s discovery motion will stand.” But the Court also stated that it “expects the parties to cooperate in the discovery process, allowing the Government reasonable access to any lab reports, test results, and expert disclosures.” That court order also provided that Chauvin’s team may take discovery of any histology slides of Floyd’s heart, tissue samples of his heart, tissue blocks containing heart tissue from Floyd and recut sections of all autopsy tissue slides relating to his heart. Chauvin’s lawyers are also allowed to inspect and make copies of any photographs taken of Floyd’s heart and they can take quantities of certain fluids for test. [5]

Reactions

This is a shocking development in this historic police misconduct case in Minneapolis that could obviously affect the other four policemen convicted of aiding and abetting Chauvin in the Floyd case if the tests now ordered establish the theory advanced by Dr. William Schaetzel unless there is law that refuses to excuse policemen for such conduct if the victim has unusual medical conditions.

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[1] Derek Chauvin’s Motions for New Trial for Killing of George Floyd, dwkcommentaries.com (Sept. 6, 2024).

[2] Defendant’s Motion for Discovery, U.S. v. Chauvin, U.S. Dist. Ct., D. Minn. (Dec.13, 2024).

[3] Order, U.S. v. Chauvin U.S. Dist. Ct., D. Minn. (Dec.16, 2024).

[4] Government’s Motion To Reconsider Defendant’s Motion for Discovery, U.S. v. Chauvin, U.S. Dist. Ct.. D. Minn. (Dec. 17, 2024)

[5] Order, U.S. v. Chauvin, U.S. Dist. Ct., D. Minn. (Dec. 17, 2024); Montemayor, Derek Chauvin allowed to examine George Floyd’s heart tissue in challenge to federal conviction, StarTribune (Dec. 16, 2024); Moser, Motion allows George Floyd’s heart tissue to be examined in Derek Chauvin’s latest challenge to federal conviction, CBS News (Dec. 16, 2024): Karnowski, Judge allows testing of tissue from George Floyd as officer convicted of killing him seeks new trial, AP News.com (Dec. 17, 2024).

Derek Chauvin’s Motions for New Trial for Killing George Floyd

Derek Chauvin was the senior police officer leading three other Minneapolis policemen in the May 2020 killing of George Floyd on a Minneapolis street.

This resulted in criminal cases against Chauvin and the other three policemen in both Minnesota state and federal courts. The state court cases, after trials (and a guilty plea by Thomas Lane), are now completed with convictions of all four policemen and they are now serving their sentences (concurrently) in federal prisons. The same is true for the federal criminal cases against the four policemen [1]

However, the federal criminal case against Derek Chauvin is still being litigated, which is discussed below.

Initial Proceedings in Federal Criminal Case Against Chauvin

On May 7, 2021, the U.S. District Court filed criminal charges against Chauvin and the other three policemen over the killing of George Floyd.

On December 15, 2021, in federal court Chauvin pleaded guilty to two counts of depriving Mr. Floyd of his federally-protected civil rights and ultimately causing his death and to charges for Chauvin’s 2017 misconduct with John Pope (in an unrelated matter) and under a negotiated and detailed Plea Agreement the prosecution and Chauvin agreed that the court could impose imprisonment of 20 to 25 years for these crimes.

On May 4, 2022, U.S. District Court Judge Magnuson approved the guilty plea agreement and said the federal sentence would be in accordance with the plea agreement.

On July 7, 2022, Judge Magnuson sentenced Chauvin to 245 months (20.4 years) in federal prison for (a) his depriving George Floyd of his federal civil rights by pinning his knee against Floyd’s neck and ultimately causing his death; and (b) Chauvin’s holding down with his knee John Pope, then a 14-year old boy in 2007, and failing to provide medical care to the boy and thereby causing non-fatal injuries.

Chauvin’s Pending Challenge to His Federal Court Conviction and Sentencing and, Therefore, for a New Trial

On November 13, 2023, Chauvin (without legal counsel) filed a motion in the U.S. District Court for the District of Minnesota to vacate his conviction and sentencing by that court. The asserted basis for this new motion was the opinion of a pathologist, Dr. William Schaetzel, who had never examined the Floyd corpse and never testified in any of the criminal cases, but who said based on review of certain papers that Floyd did not die from asphyxia from Chauvin’s actions, but from complications of a rare tumor called paragangliona that can cause a fatal surge of adrenaline.

On January 12, 2024, the U.S. Attorney’s Office for Minnesota and the U.S. Justice Department’s Civil Rights Division submitted their opposition to this Chauvin motion with the following major points:

Chauvin in his guilty plea agreement “waive[d] the right to petition under 28 U.S.C. § 2255 except based upon a claim of ineffective assistance of counsel.”
Chauvin “failed to show . . .that counsel’s performance was deficient . . . because ‘counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment’. . . and [because Chauvin failed to show that] such “acts or omissions . . . [fell] “outside the wide range of professionally competent assistance.”
Chauvin also failed to show that “there is a reasonable probability that but for counsel’s error, he would not have pleaded guilty and would have insisted on going to trial” and that the opinion of William Schaetzel “likely would have changed the outcome of the trial.” Thus, Chauvin failed to show that he suffered prejudice.
The ”files and records of this case—including the exhibits cited by Defendant in his motion—conclusively show that Defendant is not entitled to relief, and a hearing is not necessary.”

On July 31, 2024, Chauvin, now represented by counsel, filed his Reply Brief in the proceeding on his habeas corpus motion in the U.S. District Court for the District of Minnesota. The asserted basis for this new brief was the alleged ineffective assistance of his trial counsel by failing to advise Chauvin of the previously mentioned opinion of Dr.Schaetzel and counsel’s failure to ask for tests of Mr. Floyd for catecholamines and their metabolites.

On August 14, 2024, the U.S. Attorney for the District of Minnesota and the Assistant U.S. Attorney General filed the Government’s Surreply in Opposition to Defendant’s Motion To Set Aside, or Correct Sentence under 28 U.S.C. sec. 25255. It asserted the following points:

Under his guilty plea of December 15, 2021, Chauvin waived the right to petition under section 25255 except based on a claim of ineffective assistance of counsel.
Any convicted person’s claim of ineffective-counsel must establish (1) that his “counsel’s performance was so deficient it actually prejudiced the defense.and “fell below an objective standard of reasonableness” and (2) counsel’s deficient performance actually prejudiced the defendant’s defense.
Even if counsel did not inform Chauvin of the opinion of Dr. Schaetzel, it was a tactical decision by his counsel not to explore an untested (and in any event cumulative) opinion by someone who claimed to be an expert. Such a decision is a “paradigmatic example” of an attorney’s strategic choice, which, when made after a reasonable investigation, is “virtually unchallengeable” in effectiveness claims.”
Chauvin’s self-serving statement that had he known of the unsolicited medical opinion, he would have exercised his right to trial is an example of “post hoc assertions” that are insufficient to establish the necessary prejudice.
Chauvin’s expert witness at trial, who was selected by Chauvin’s attorney, provided testimony that was not meaningfully different, factually or legally, from that of Dr. Schaetzel.

Conclusion

Chauvin’s pending motion appears to be barred by the prosecution’s arguments. The motion also appears to be barred by Chauvin’s guilty plea under oath, where Chauvin admitted in writing that “certain facts were true . . .[and] established his guilt beyond a reasonable doubt].” The following are some of those Chauvin admissions:

Chauvin, ‘while acting under color of law . . . willfully deprived George Floyd of . . . the right to be free from an unreasonable seizure, which includes the right to be free from the use of unreasonable force by a police officer. [Chauvin] . . . held his left knee across Mr. Floyd’s neck, back, and shoulder, and his right knee on Mr. Floyd’s back and arm. As Mr. Floyd lay on the ground, handcuffed and unresisting, [Chauvin] . . . kept his knees on Floyd’s neck and body, even after Mr. Floyd became unresponsive. This offense resulted in bodily injury to, and the death of, George Floyd.”
Chauvin “admits that in using this unreasonable and excessive force, he acted willfully and in callous and wanton disregard of the consequences to Mr. Floyd’s life. [Chauvin] . . . knew that what he was doing was wrong, in part, because it was contrary to his training as an MPD officer.. .”
Chauvin “also knew there was no legal justification to continue his use of force because he was aware that Mr. Floyd not only stopped resisting, but also stopped talking, stopped moving, stopped breathing, and lost consciousness and a pulse.’ [Chauvin] . . .chose to continue applying force even though he knew Mr. Floyd’s condition progressively worsened. . . . [Chauvin] also heard Mr. Floyd repeatedly explain that he could not breathe, was in pain, and wanted help.”
Chauvin “knew that what he was doing was wrong—that continued force was no longer appropriate and that it posed significant risks to Mr. Floyd’s life—based on what he observed and heard about Mr. Floyd.”
Chauvin “admits that he failed to render medical aid to Mr. Floyd, as he was capable of doing, and trained and required to do.”

Therefore, Chauvin’s motion should be denied and he needs to remain in prison for the balance of his sentence of 245 months (20.4 years).

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[1] Since the horrible killing of George Floyd in Minneapolis in May of 2020, this blogger has written many posts about that crime and the subsequent criminal litigation in Minnesota state and federal courts. (See List of Posts to dwkcommentaries: Topical: George Floyd Killing; List of Post–Chronological (2020); List of Posts–Chronological (2021); List of Posts–Chronological (2022); List of Posts– Chronological (2023); List of Posts–Chronological (2024).

U.S. Government Opposes Derek Chauvin’s Motion To Vacate, Set Aside or Correct His Judgment of Guilt and Sentence for Killing George Floyd

As previously noted, on November 13. 2023, Derek Chauvin (without legal counsel) filed a motion in the U.S. District Court for the District of Minnesota to vacate his conviction and sentencing by that court, which was based on his guilty plea, for the murder and manslaughter of George Floyd.[1]

Federal Government’s Opposition to Chauvin Motion[2]

On January 12, 2024, the Federal Government filed its opposition to that Chauvin motion for the following reasons: his guilty plea waived the right to challenge that conviction except for a claim of ineffective assistance of counsel, which fails on its merits and, therefore, “conclusively show that [Chauvin] is not entitled to relief.”

The Government’ opposition then uses about 10 pages of citations to legal authorities and argument to conclude that Chauvin’s motion should be denied without a hearing because the “files and record of the case conclusively show that the prisoner is entitled to no relief” or “the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based.”

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[1] Response to Derek Chauvin’s Federal Motion for New Trial for Killing George Floyd, dwkcommentaries.com (Nov. 26, 2023).

[2] Government’s Opposition to Defendant’s Motion To Vacate. Set Aside. Or Correct Sentence Under 28 U.S.C.sec. 2255. United States v. Derek Michael Chauvin, Case 0:21-cr-00108-PAM-TNL, U.S. Dist. Ct., D. MN (Jan. 12, 2024).

Prosecution Opposes Derek Chauvin’s New Attempt To Overturn His Federal Conviction for Killing George Floyd

In November 2023, Derek Chauvin (without legal counsel) filed a motion in U.S. District Court for the District of Minnesota for dismissal of the federal criminal charges against him for the killing of George Floyd or for a new trial. The asserted basis for this new motion was the opinion of a pathologist, Dr. William Schaetzel, who had never examined the Floyd corpse and never testified in any of the criminal cases, but who said based on review of certain papers that Floyd did not die from asphyxia from Chauvin’s actions, but from complications of a rare tumor called paragangliona that can cause a fatal surge of adrenaline.[1]

U.S. Attorneys’ Response to Chauvin Motion[2]

On January 12, 2024, the U.S. Attorney’s Office for Minnesota and the U.S. Justice Department’s Civil Rights Division submitted their opposition to the Chauvin motion with the following major points:

Chauvin in his guilty plea agreement “waive[d] the right to petition under 28 U.S.C. § 2255 except based upon a claim of ineffective assistance of counsel.”
Chauvin “failed to show . . .that counsel’s performance was deficient . . . because ‘counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment’. . . and [because Chauvin failed to show that] such “acts or omissions . . . [fell] “outside the wide range of professionally competent assistance.”
Chauvin also failed to show that “there is a reasonable probability that but for counsel’s error, he would not have pleaded guilty and would have insisted on going to trial” and that the opinion of William Schaetzel “likely would have changed the outcome of the trial.” Thus, Chauvin failed to show that he suffered prejudice.
The ”files and records of this case—including the exhibits cited by Defendant in his motion—conclusively show that Defendant is not entitled to relief, and a hearing is not necessary.”

This Blog’s Preliminary Reasons for Denial of Chauvin’s Motion

Before the filing of the above prosecution brief, this blog argued that various provisions of Chauvin’s guilty plea barred this motion. [3]

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[1] Krauss, Derek Chauvin files motion attempting to overturn federal conviction, StarTribune (Nov. 13, 2023)

[2] Government’s Opposition to Defendant’s Motion To Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. sec. 2255, U.S. v. Chauvin, Crim No. 21-108 (Jan. 12, 2024);Karnowski (AP), Prosecutors urge rejection of Chauvin bid to dismiss civil rights conviction in George Floyd murder, StarTribune (Jan. 12, 2024) This blogger has not been able to obtain a copy of the prosecution’s brief.

[3] Response to Derek Chauvin’s Federal Motion for New Trial for Killing George Floyd, dwkcommentaries.com (Nov. 26, 2023).

Response to Derek Chauvin’s Federal Motion for New Trial for Killing George Floyd

A recent post discussed recent developments in the state and federal criminal cases against ex-officer Derek Chauvin for the killing of George Floyd, including his recent motion for a new trial in federal court based on the opinion of a pathologist who had never examined Mr. Floyd or his corpse and who had never participated in either of these cases.[1] Now here is preliminary analysis of that new Chauvin motion.

Chauvin’s New Motion Challenging His Federal Conviction and Sentencing[2]

On November 13, 2023, Derek Chauvin (without legal counsel) filed a motion in the U.S. District Court for the District of Minnesota to vacate his conviction and sentencing by that court, which was based on his guilty plea, for the murder and manslaughter of George Floyd in Minneapolis in May 2020.

The asserted basis for this new motion was the opinion of a pathologist, Dr. William Schaetzel, who had never examined the Floyd corpse and never testified in any of the criminal cases, but who said based on review of certain papers that Floyd did not die from asphyxia from Chauvin’s actions, but from complications of a rare tumor called paragangliona that can cause a fatal surge of adrenaline.

This Motion Is Bared By Chauvin’s Guilty Plea

This new motion appears to be barred by Chauvin’s guilty plea under oath, where Chauvin admitted in writing that “certain facts were true . . .[and] established his guilt beyond a reasonable doubt].” [3] Those admissions included the following:

Chauvin, ‘while acting under color of law . . . willfully deprived George Floyd of . . . the right to be free from an unreasonable seizure, which includes the right to be free from the use of unreasonable force by a police officer. [Chauvin] . . . held his left knee across Mr. Floyd’s neck, back, and shoulder, and his right knee on Mr. Floyd’s back and arm. As Mr. Floyd lay on the ground, handcuffed and unresisting, [Chauvin] . . . kept his knees on Floyd’s neck and body, even after Mr. Floyd became unresponsive. This offense resulted in bodily injury to, and the death of, George Floyd.”
Chauvin “admits that in using this unreasonable and excessive force, he acted willfully and in callous and wanton disregard of the consequences to Mr. Floyd’s life. [Chauvin] . . . knew that what he was doing was wrong, in part, because it was contrary to his training as an MPD officer.. .”
Chauvin “also knew there was no legal justification to continue his use of force because he was aware that Mr. Floyd not only stopped resisting, but also stopped talking, stopped moving, stopped breathing, and lost consciousness and a pulse.’ [Chauvin] . . .chose to continue applying force even though he knew Mr. Floyd’s condition progressively worsened. . . . [Chauvin] also heard Mr. Floyd repeatedly explain that he could not breathe, was in pain, and wanted help.”
Chauvin “knew that what he was doing was wrong—that continued force was no longer appropriate and that it posed significant risks to Mr. Floyd’s life—based on what he observed and heard about Mr. Floyd.”
Chauvin “admits that he failed to render medical aid to Mr. Floyd, as he was capable of doing, and trained and required to do.”

Conclusion

Now we await the State’s response to this motion by Chauvin, any reply from Chauvin and the court’s decision on the morion.

In the meantime, on November 24, 2023, Chauvin was seriously stabbed by another inmate at the Tucson, Arizona federal prison where Chauvin was incarcerated, but Chauvin is expected to live. [3]

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[1] U.S. Supreme Court Denies Derek Chauvin’s Petition To Review His State Court Conviction for Murder and Manslaughter of George Floyd, dwkcommentaries.com (Nov. 20, 2023).

[2] Motion To Vacate Conviction and Sentence under 28 U.S.C. SECTION 2255, U.S. v. Chauvin, Case No. 21-CR-108-PAM, U.S. Dist. Ct. MN (Nov. 13, 2023); Karnowski (AP), Ex-officer Derek Chauvin makes another bid to overturn federal conviction in murder of George Floyd, StarTribune. com (Nov. 14, 2023); Krauss, Derek Chauvin files motion attempting to overturn federal conviction, StarTribune (Nov. 15, 2023); Price, Derek Chauvin claims new evidence shows he didn’t cause George Floyd’s death, attempts to overthrow conviction, Fox News (Nov. 15, 2023); Naham, Convicted murderer Derek Chauvin’s prison emails revealed as he cites pathologist’s alternate theory George Floyd ‘literally scared’ to death, Law & Crime (Nov. 15, 2023).

[3] (Sisak, Ex-officer Derek Chauvin, convicted in George Floyd’s killing, stabbed in prison, AP sources say, StarTribune (Nov,. 24, 2023); Olson & Sawyer, Derek Chauvin expected to survive after prison stabbing, StarTribune (Nov. 25, 2023); Hughlett, Derek Chauvin survives Arizona federal prison attack, raising questions about security, StarTribune Nov. 25, 2023).

U.S. Supreme Court Denies Derek Chauvin’s Petition to Review His State Court Conviction for Murder and Manslaughter of George Floyd

On November 20, 2023, the U.S. Supreme Court without opinion denied Derek Chauvin’s petition for review of his state court conviction for the murder and manslaughter of George Floyd in May 2020.[1] It thus appeared that this state court criminal case was over as was Chauvin’s federal guilty plea, criminal conviction and sentencing for the killing of George Floyd. However, as discussed below, a recent development in the federal case raises the question of whether one or both of those cases could be reopened.

Prior State Court Proceedings[2]

Chauvin’s state court conviction resulted from an April 2021 Hennepin County jury verdict that he was guilty of second-degree unintentional murder, third-degree murder and second-degree manslaughter. The following June Hennepin County District Judge Peter Cahill sentenced him to 22 ½ years in prison for those crimes.

Chauvin’s appeal of that conviction was rejected by the Minnesota Court of Appeals in April 2023 with a 50-page opinion and the Minnesota Supreme Court in July 2023 denied his appeal from same without opinion.

That Minnesota Supreme Court decision was then challenged by Chauvin’s petition to the U.S. Supreme Court, which just denied that petition.

Derek Chauvin’s Federal Court Proceedings[3]

In May 2021, the U.S. District Court for the District of Minnesota filed a criminal complaint against Chauvin and the other three Minneapolis ex-policeman over the killing of George Floyd.

Without a trial Chauvin pled guilty in December 2021 to these charges. In that guilty pleaChauvin admitted in writing that certain facts were true . . .[and] established his guilt beyond a reasonable doubt].” [3] Those admissions included the following:

Chauvin, ‘while acting under color of law . . . willfully deprived George Floyd of . . . the right to be free from an unreasonable seizure, which includes the right to be free from the use of unreasonable force by a police officer. [Chauvin] . . . held his left knee across Mr. Floyd’s neck, back, and shoulder, and his right knee on Mr. Floyd’s back and arm. As Mr. Floyd lay on the ground, handcuffed and unresisting, [Chauvin] . . . kept his knees on Floyd’s neck and body, even after Mr. Floyd became unresponsive. This offense resulted in bodily injury to, and the death of, George Floyd.”
Chauvin “admits that in using this unreasonable and excessive force, he acted willfully and in callous and wanton disregard of the consequences to Mr. Floyd’s life. [Chauvin] . . . knew that what he was doing was wrong, in part, because it was contrary to his training as an MPD officer.. .”
Chauvin “also knew there was no legal justification to continue his use of force because he was aware that Mr. Floyd not only stopped resisting, but also stopped talking, stopped moving, stopped breathing, and lost consciousness and a pulse.’ [Chauvin] . . .chose to continue applying force even though he knew Mr. Floyd’s condition progressively worsened. . . . [Chauvin] also heard Mr. Floyd repeatedly explain that he could not breathe, was in pain, and wanted help.”

Chauvin “knew that what he was doing was wrong—that continued force was no longer appropriate and that it posed significant risks to Mr. Floyd’s life—based on what he observed and heard about Mr. Floyd.”

Chauvin “admits that he failed to render medical aid to Mr. Floyd, as he was capable of doing, and trained and required to do.”

In July 2022 U.S. District Judge Magnuson sentenced Chauvin to 245 Months for Depriving George Floyd and John Pope [a teenager in a different case] of Their Federal Civil Rights.

It thus appeared that this federal case was over while Chauvin concurrently served his federal and state sentences in a federal prison in Colorado.

Recent Chauvin Challenge to Federal Conviction and Sentencing[4]

However, on November 13, 2023, Derek Chauvin (without legal counsel) filed a motion in the U.S. District Court for the District of Minnesota to vacate his conviction and sentencing by that court, based on his guilty plea, for the murder and manslaughter of George Floyd in Minneapolis in May 2020.

The asserted basis for this motion was the opinion of a pathologist, Dr. William Schaetzel, who had never examined the Floyd corpse and never testified in any of the criminal cases, but said based on review of certain papers that Floyd did not die from asphyxia from Chauvin’s actions, but from complications of a rare tumor called paragangliona that can cause a fatal surge of adrenaline.

This development will be explored in a subsequent post.

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[1] Hyatt, U.S. Supreme Court rejects review of Derek Chauvin’s latest appeal attempt, Star Tribune Nov. 20, 2023) Supreme Court rejects appeal of former Minneapolis police officer convicted of killing George Floyd, APNews (Nov. 20, 2023)

[2] Derek Chauvin Trial: Week Seven {Conviction), dwkcommentaries.com (April 21, 2021);Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment, dwkcommentaries.com (June 28, 2021);Derek Chauvin’s Appeal of State Conviction and Sentencing for Killing George Floyd, dwkcommentaries.com (Jan. 23, 2023); Minnesota Court of Appeals Affirms State Court Conviction of Derek Chauvin for Killing George Floyd, dwkcommentaries.com (April 19, 2023); Derek Chauvin Asks Minnesota Supreme Court To Review His Conviction for Killing of George Floyd, dwkcommentaries.com (May 18, 2023); Derek Chauvin Will Ask U.S. Supreme Court To Review His State Court Conviction for Murder and Manslaughter of George Floyd , dwkcommentaries.com(July 21, 2023); Derek Chauvin Files Petition for U.S. Supreme Court Review of His State Court Conviction for Murder and Manslaughter of George Floyd, dwkcommentaries.com (Oct. 25, 2023).

[3] Federal Criminal Charges Against Ex-Policemen Over George Floyd’s Killing, dwkcommentaries,com (May 7, 2021); Derek Chauvin Pleads Guilty to Federal Charges Over George Floyd Killing and Excess Force Against Teenager ,dwkcommentaries.com (December 16, 2021); Federal Court Sentences Derek Chauvin to 245 months (20.4 Years) for Depriving George Floyd and John Pope of Their Federal Civil Rights, dwkcommentaries.com (July 8, 2022); Comment: Federal Court’s Criminal Judgment for Derek Chauvin, dwkcommentaries.com (July 9, 2022).

[4] Karnowski (AP), Ex-officer Derek Chauvin makes another bid to overturn federal conviction in murder of George Floyd, StarTribune. com (Nov. 14, 2023) Krauss, Derek Chauvin files motion attempting to overturn federal conviction, StarTribune (Nov. 15, 2023) Price, Derek Chauvin claims new evidence shows he didn’t cause George Floyd’s death, attempts to overthrow conviction, Fox News (Nov. 15, 2023) Naham, Convicted murderer Derek Chauvin’s prison emails revealed as he cites pathologist’s alternate theory George Floyd ‘literally scared’ to death, Law & Crime (Nov. 15, 2023) Motion To Vacate Conviction and Sentence under 28 U.S.C. SECTION 2255, U.S. v. Chauvin, Case No. 21-CR-108-PAM, U.S. Dist. Ct. MN (Nov. 13, 2023).

State Court Imposes Sentence of 57 Months Imprisonment on Tou Thao for Aiding Manslaughter of George Floyd

When George Floyd was killed on May 25, 2020, Tou Thao was a Minneapolis police officer who was in charge of monitoring and restraining the large nearby crowd of bystanders while observing fellow officers Derek Chauvin, Thomas Lane and Alexander Kueng physically restraining and killing George Floyd on the nearby pavement. On August 7, 2023, Thao was sentenced in state court to 57 months imprisonment for aiding and abetting second-degree manslaughter. The following is a summary of Minnesota state courts’ proceedings, convictions and sentencings of these four ex-Minneapolis police officers.

Prior State Court Proceedings[1]

The State of Minnesota charged Thao and the other three officers with various crimes for the killing of Mr. Floyd. The officer in charge, Derek Chauvin, was the first officer to go on trial in the Hennepin County District Court and a jury found him guilty of second- and third-degree murder and second-degree manslaughter and the court sentenced him to 22.5 years imprisonment.

The Minnesota Court of Appeals then denied Chauvin’s appeal and the Minnesota Supreme Court declined to hear his further appeal. According to his attorney, Chauvin will petition the U.S. Supreme Court to review his case.

In Hennepin County District Court in May 2022, Officer Lane pleaded guilty to a charge of aiding and abetting second-degree manslaughter and was sentenced to 2.5 years imprisonment.

In October 2022, also in Hennepin County District Court, Kueng pleaded guilty to aiding and abetting manslaughter and was sentenced to three years imprisonment.

Thao, however, rejected a proposed guilty plea and instead chose to have Judge Cahill try him on stipulated evidence.

District Court’s Conviction of Thao[2]

On May 1, 2023, District Court Judge Peter Cahill issued the Court’s 177-page Verdict, Findings of Fact, Conclusions of Law and Memorandum Opinion. In finding Thao guilty of aiding and abetting second-degree manslaughter of George Floyd, the Verdict stated:

“Thao actively encouraged his three colleagues’ dangerous prone restraint of Floyd while holding back a crowd of concerned bystanders begging the officers to render medical aid. Thao knew, as the minutes passed and the restraint continue unimpeded, that Floyd had stopped talking and fallen silent, had stopped moving altogether, and
had become totally unresponsive. In fact, by about six minutes into the restraint, Floyd stopped breathing, lost consciousness, and became pulseless.”
That night Thao “was an experienced Minneapolis police officer with almost a decade’s experience. He knew that the officers’ prone restraint could kill. Like the other officers, Thao had been trained specifically to turn an individual onto his side to avoid positional asphyxia, the very thing that several eminent medical specialists who testified at trial concluded caused Floyd’s death. Like the bystanders, Thao could see Floyd’s life slowly ebbing away as the restraint continued. Yet Thao made a conscious decision to actively participate in Floyd’s death: he held back the concerned bystanders and even prevented an off-duty Minneapolis firefighter from rendering the medical aid Floyd so desperately needed.”
““Thao also directly insisted upon continuing the restraint that took Floyd’s death that night. Soon after Floyd had been subdued prone on the street, Thao retrieved a device called a ‘hobble’ from Lane’s and Kueng’s squad. If properly employed, that hobble would have saved Floyd’s life. But Thao encouraged the other officers not to use the hobble and instead to ‘hold on’ and continue the physical restraint by which his three fellow officers were bearing down on Floyd, forcing him into the unyielding concrete of the street, drastically inhibiting his ability to breathe effectively. Thao’s stated reason? ‘If we hobble him, the sergeant is going to have to come out’ to complete the paper work for a ‘use of force review’ mandated by MPD policy whenever the hobble is employed. The short of it: Tou Thao did not want to follow the proper protocol and the work it would entail. George Floyd died as a result.”

District Court’s Sentencing of Thao[3]

On August 3, 2023, Minnesota Assistant Attorney General Erin Eldridge submitted a three-page letter to the Court noting that the presumptive sentence for this crime for Thao was 48 months with a guideline range of 41 to 57 months and that the State requested the imposition of a 51 month sentence for the following reasons:

“Thao’s conduct was calculated, deliberate, and directly facilitated and perpetuated the restraint that led to Floyd’s death. Throughout the encounter, Thao was aware of Floyd’s distress and the dangerousness of the ongoing prone restraint. Thao discouraged the officers from using a hobble—a device that, if properly utilized, would have saved Floyd’s life. . . . Instead, Thao actively encouraged his fellow officers to continue to restrain Floyd prone on the ground. . . . . . Thao also ‘expressly refused to allow’ ‘a trained Minneapolis firefighter’ ‘to tend to Floyd, . . . despite Floyd’s obvious distress. . . . In short, Thao bears personal responsibility for what happened that day. This Court should impose a punishment that reflects Thao’s culpability.”
“Thao’s conduct was even more egregious in light of his extensive experience and training. Thao completed the police academy in 2009, and became a full-time officer in 2012, serving in that capacity for 8 years. …. Over the course of his multi-year career, Thao completed 1,014 hours of MPD training, including medical training, defensive tactics training, procedural justice training, and crisis intervention training. . . . .Above all, Thao had been trained about the importance of placing individuals in the side recovery position to alleviate the risk of positional asphyxia. . . . Yet despite his extensive on-the-job experience and copious training, Thao intentionally encouraged the use of a dangerous prone restraint, discouraged the use of a hobble, and prevented an off-duty firefighter from rendering aid. In short, Thao knew better, but did not do better.”
“Thao acted callously and cruelly. Thao mocked Floyd, telling the concerned bystanders: ‘This is why you don’t do drugs, kids.’ . . . . Thao dismissed Floyd’s pleas: ‘He’s talking, so he’s fine.’ . . . And Thao encouraged the dangerous behavior for selfish reasons: In Thao’s words, if the officers used a hobble, ‘a sergeant’s going to have to come [to the scene].’ ….This Court put it best: ‘Tou Thao did not want to follow the proper protocol and the work it would entail. George Floyd died as a result.’ . . . . “
“[A] a significant term of incarceration would serve as a deterrent for similar misconduct. Police officers enforce the law; they are not above the law. A 51-month prison sentence will discourage other public servants from engaging in similar criminal behavior or abuses of authority.”
“Thao has neither accepted responsibility nor shown any remorse for his actions”

At the August 7 sentencing hearing, Mr. Eldridge said, “George Floyd’s last words were heard around the world, but more importantly they were heard by Tou Thao and we cannot forget them now three years later.”

Mr. Thao’s attorney, Robert Paule, said at the hearing, “The death of Mr. Floyd is a tragedy, but the court is a place of justice, not retribution. Mr. Thao went out that day with the purest intentions. My client is a good and decent man with a family.” Paule then requested a sentence of 47 months, which was 10 months less than the maximum of the sentencing guidelines.

Mr. Thao then spoke for about 23 minutes to say, “Hold on to the truth that I did not commit these crimes; my conscience is clear. I will not be a Judas nor join a mob in self-preservation or betray my God. I did not intend on hurting anyone that day. I did the best I thought I could. Obviously the outcome didn’t come out the way I wanted it. I’ll leave it at that” without any apology. He then quoted Biblical passages and preached of repentance, fear of God and forgiveness. “Today if you feel the love of God pulling at your heart. . . . Let it be your day of salvation. Do not harden your heart in rebellion, for God desired mercy and relationship with you.”

Thao then directly asked Judge Cahill if he was a brother in Christ and apologized if he had offended the Judge by refusing to take a guilty plea deal and having said, “it would be a lie and a sin for me to accept a plea deal.” The Judge then said no offense was taken.

Thao closed by saying that he is praying for everyone in the room, including the Judge, and that if anyone needs him for prayer, “you know where to find me. Thank you judge. God bless you.”

Judge Cahill then said, “After three years of reflection, I was hoping for a little more remorse, regret, acknowledgement of some responsibility and less preaching.” The Judge added that he would not rehash the facts of the case, but that Thao’s “culpability is less than Mr. Chauvin, but well above Mr. Kueng and Mr. Lane as an experienced senior officer who was in the best position to save George Floyd.” Therefore, a sentence of 57 months was appropriate.

This sentence will be served in Minnesota state prison, to which he will be transferred from federal prison where he already is serving his federal sentence of 42 months for violations of Floyd’s civil rights with the balance of that federal sentence to be served concurrently with the state sentence. [4]

Conclusion

After the hearing, Thao’s attorney said he would appeal the guilty verdict and the sentence.

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

[2] Tou Thao, ex-MPD Officer, Convicted for Aiding and Abetting Second-Degree Manslaughter of George Floyd, dwkcommentaries.com (May 3, 2023); Briefs in Tou Thao’s State Court Criminal Case Over Killing of George Floyd, dwkcommentaries.com (Feb. 2, 2023);

[3] Hyatt, Ex-Minneapolis cop Tou Thao sentenced to nearly 5 years for aiding George Floyd’s killing, StarTribune (Aug. 7, 2023); Karnowski, Ex-Minneapolis officer unrepentant as he gets nearly 5 years in George Floyd killing, AP News (Aug. 7, 2023); Betts, Former Officer Gets More than 4 Years in Final Sentencing for Police Killing of George Floyd, N.Y. Times (Aug. 7, 2023). Bailey, Ex-Minneapolis officer gets second sentence in George Floyd’s death, Wash. Post (Aug. 7, 2023); Helmore, Ex-officer sentenced to nearly five years for role in George Floyd’s murder, Guardian (Aug. 7, 2023); Letter, Minnesota Assistant Attorney General Erin R. Eldridge to Judge Peter Cahill (Aug. 3, 2023).

[4] Tou and the other three ex-MPD officers were also sued in federal court for alleged violations of Mr. Floyd’s civil rights. All four of them were convicted and sentenced to federal imprisonment. (E.g., U.S. Court of Appeals Affirms Federal Conviction of Tou Thao for Violating the Civil Rights of George Floyd, dwkcommentaries.com (Aug. 5, 2023).) https://www.startribune.com/tou-thao-sentenced-nearly-5-years-aiding-george-floyds-killing/600295391/?refresh=true

U.S. Court of Appeals Affirms Federal Conviction of Tou Thao for Violating the Civil Rights of George Floyd

On August 4, 2023, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit unanimously affirmed the conviction of Tou Thao by the U.S. District Court for the District of Minnesota for violating the civil rights of George Floyd during the 2020 murder of George Floyd by Derek Chauvin.[1]

The appellate opinion by Circuit Judge Jonathan Kobes, which was joined by Circuit Judges James Loken and Ralph Erickson, agreed with District Court Judge Paul Magnuson, after trial, that prosecutors had supplied sufficient evidence to support convictions on two counts of depriving Floyd’s rights under color of law — charges that Thao failed to intervene in Derek Chauvin’s use of unreasonable force and that Thao was “deliberately indifferent to Floyd’s medical needs.”

The Eighth Circuit also held that although evidence of Thao’s deliberate indifference was “not overwhelming,” a reasonable jury could find that Thao acted willfully, based on his knowledge and training, by failing to give Floyd medical aid.

The appellate opinion also rejected Thao’s argument that he was innocent because Floyd arguably was experiencing excited delirium since under MPD policy, neck restraints are inappropriate once the detainee stops resisting, even when a detainee is experiencing excited delirium.

Therefore, the Eighth Circuit concluded that “there was sufficient evidence for the jury to find that Thao acted willfully on both [section] 242 counts and that any prosecutorial misconduct did not deprive Thao of his right to a fair trial.” Thus, the district court was affirmed.

Afterwards Thao’s attorney, Robert Paule, said, “I have the utmost respect for the court but I vehemently disagree with this decision and Mr. Thao will continue to pursue every possible avenue for relief in this case.” The only possible ways for seeking such relief are asking the Eighth Circuit en banc to review the case or to petition the U.S. Supreme Court for such review. In this blogger’s opinion, both of these options would be unsuccessful.

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[1] Montemayor, Appeals court affirms federal conviction of Tou Thao in George Floyd’s killing, StarTribune (Aug. 4, 2023); Opinion, U.S. Court of Appeals for Eighth Circuit, U.S. v. Thao, Case No. 22-2201 (Aug. 4, 2023).

The District Court had tried together three of the ex-MPD officers (Thao, Lane and Kueng), and on February 24, 2022, the jury returned a verdict that all three were guilty of all charges. (Federal Criminal Trial for Killing of George Floyd: Jury Deliberations and Verdict, dwkcommentaries.com (Feb. 25, 2022).) Then on July 27, 2022, District Judge Paul Magnusson sentenced Thao to 3 ½ years imprisonment, Kueng to three years imprisonment and Lane to 2 ½ years imprisonment followed by two years of supervised release. (Completion of Federal Criminal Cases Over Killing of George Floyd, dwkcommentaries.com (July 27, 2022).)