Derek Chauvin – dwkcommentaries

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]

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

[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.

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

[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.

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

[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.

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

[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).)

Derek Chauvin Will Ask U.S. Supreme Court To Review His State Court Conviction for Murder and Manslaughter of George Floyd

The Minnesota Supreme Court on July 18, 2023, in a one-page order denied Derek Chauvin’s petition for review of the Minnesota Court of Appeals’ 50-page decision affirming his state court conviction, after a jury trial, for second-degree unintentional murder, third-degree murder and second-degree manslaughter in the May 2020 death of George Floyd.[1]

Immediately afterwards Chauvin’s attorneys said that they will petition the U.S. Supreme Court to review the case on the ground that his right to a fair trial under the U.S. Constitution was violated. “This criminal trial generated the most amount of pretrial publicity in history. More concerning are the riots which occurred after George Floyd’s death [and] led the jurors to all express concerns for their safety in the event they acquitted Mr. Chauvin — safety concerns which were fully evidenced by surrounding the courthouse in barbed wire and National Guard troops during the trial and deploying the National Guard throughout Minneapolis prior to jury deliberations.”[2]

Minnesota Attorney General Keith Ellison, however, said that the state Supreme Court’s denial of review “means that the Court of Appeals was correct in finding that his trial was properly conducted and he was properly convicted under law. This development definitively holds Chauvin accountable and closes this chapter of the murder of George Floyd.”

In this blogger’s opinion, the U.S. Supreme Court will deny this petition on the grounds that the Minnesota Court of Appeals’ 50-page decision is well-reasoned and thorough. In addition, as previously argued in this blog, Chauvin’s guilty plea to related charges in federal court should be another ground for rejecting any Chauvin appeals, but this argument was not mentioned by the Court of Appeals.[3]

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

[1] Walsh, Minnesota Supreme Court declines to hear Derek Chauvin’s petition for appeal, Star Tribune (July 19, 2023); Minnesota Court of Appeals Affirms Chauvin’s State Court Conviction for Killing of George Floyd, dwkcommentaries.com (April 19, 2023)

[2] Karnowski, Ex-officer Derek Chauvin to ask US Supreme Court to review his conviction in murder of George Floyd, Assoc. Press (July 19, 2023); Daniels, Chauvin to ask Supreme Court to review conviction in George Floyd murder, The Hill (July 20, 2023).

[3] Derek Chauvin’s Appeal of State Conviction and Sentencing for Killing of George Floyd, dwkcomentaries.com (Jan, 23, 2023).

Derek Chauvin Asks Minnesota Supreme Court To Review His Conviction for Killing of George Floyd

As previously reported, in April 2021, a jury in Hennepin County District Court returned a verdict that Derek Chauvin was guilty on all three counts (second degree murder, third-degree murder and second-degree manslaughter) of George Floyd in May 2020. In June 2021 that court imposed a sentence of 22.5 years imprisonment on Mr. Chauvin for these crimes.[1]

On April 17, 2023, the Minnesota Court of Appeals affirmed that conviction.[2]

On May 17, 2023, Chauvin appealed that decision to the Minnesota Supreme Court, stating that the legal issues to be reviewed were the following:

“Whether the district court’s failure to either transfer venue, delay the trial or sequester the jury deprived Petitioner of state rights and constitutional due process to a fair trial because (i) the district court failed to presume juror prejudice due to pervasive adverse publicity and violence in the community or (ii) the district court abused its discretion.”
“Whether (i) police officers acting to effect lawful arrests can be convicted of second- degree felony murder when the predicate felony required only intent to contact, with no subjective intent to use what is later adjudicated as objectively unreasonable force or (ii) Minnesota should abrogate felony murder where the predicate felony is assault.”
“Whether the jury instruction on ‘reasonableness’ police use-of-force was material error.”
“Whether upward sentence departures are misapplied when defendant’s conduct was without subjective intent.”
Whether denying a Schwartz hearing after defendant presented prima facie evidence of juror misconduct deprives defendants of the constitutional right to trial by impartial jury.”[3]

The Minnesota Supreme Court could decline to review the Court of Appeals decision or decide to conduct such a review after the parties submit detailed briefs and present arguments at a hearing and thereafter submit the Supreme Court’s decision.

This blogger thinks that the Supreme Court probably will decline to grant review. In the meantime, Chauvin is serving concurrent state and federal convictions for Floyd’s killing in a federal prison.

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

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

[2] Minnesota Court of Appeals Affirms Chauvin’s State Court Conviction for Killing of George Floyd, dwkcommentaries.com (April 19, 2023).

[3] Karnowski (AP), Chauvin appeals conviction in George Floyd’s murder to the Minnesota Supreme Court, StarTribune (May 17, 2023); Petition for Review, Chauvin v.State, Minn. Sup. Ct. # A21-1228 (May 17, 2023).

Derek Chauvin’s Ex-Wife Sentenced for Minnesota Tax Evasion

On May 12, 2023, Minnesota’s Washington County District Court sentenced Kellie Chauvin, the former wife of Derek Chauvin, based on her recent guilty plea to two counts of aiding and abetting Minnesota income tax evasion.[1]

The sentence was 20 days in jail, three years’ probation and payment of $37,868 in restitution to cover the unpaid taxes. Rather than being in jail, she can satisfy the time through “sentence to serve,” which often means being part of a supervised work crew or doing some other community work involving physical labor.

On March 17, 2023 Derek Chauvin, based upon his guilty plea, was sentenced by the same state court to a 13-month term that runs concurrent with his state murder sentence plus an order to pay $38,000 in restitution for failure to report state income taxes.

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

[1] Walsh, Derek Chauvin’s ex-wife receives 20-day sentence for tax evasion, StarTribune (May 16, 2023). . See also Derek Chauvin’s Ex-Wife Pleads Guilty to Income Tax Evasion, dwkcommentaries.com (Feb. 25, 2023); [Comment:] Derek Chauvin Pleads Guilty to Minnesota Tax Evasion Crimes, dwkcommentaries.com (Mar. 22, 2023).

Tou Thao, ex-MPD Officer, Convicted for Aiding and Abetting Second-Degree Manslaughter of George Floyd

On May 1, 2023, Hennepin County District Court Judge Peter Cahill, after a trial on stipulated evidence, issued the Verdict that Tou Thao, a former MPD officer, “committed and is GUILTY of the offense of aiding and abetting second-degree manslaughter in violation of Minn. Stat. [section] 609.05, Subd. 1, 609.205(1) in connection with the death of George Floyd on May 25, 2020 . . . and is hereby convicted of that offense.” [1]

In its 177-page Verdict, Findings of Fact, Conclusions of Law, and Memorandum Opinion in Stipulated Evidence Trial, the Court’s summary of the key evidence on this charge stated the following:

“Thao actively encouraged his three colleagues’ [Derek Chauvin, J. Alexander Kueng and Thomas Lane] 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.”
“Thao, Chauvin’s partner on that night, 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.”

Parties’ Attorneys’ Comments on this Verdict[2]

After this Verdict was filed, Minnesota Attorney General Keith Ellison stated, “The conviction of Tou Thao is historic and the right outcome. It brings one more measure of accountability in the tragic death of George Floyd. Accountability is not justice, but it is a step on the road to justice.”

Thao’s attorney, Robert Paule, said he plans to appeal the verdict. “I respectfully disagree with the decision, and I think [the Judge] expands the doctrine of aiding and abetting beyond what we’ve seen [defined] at the appellate level.” His client was “disappointed. He really is.”

Conclusion

Now all four of the ex-MPD officers involved in the killing of George Floyd have been found guilty of state and federal criminal charges for same.

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

[1] Verdict, Findings of Fact, Conclusions of Law, and Memorandum Opinion in Stipulated Evidence Trial, State v. Thao, Mn. Dist. Ct., Ct. File No. 27-CR-20-12949 (May 1, 2023); Walsh & Hyatt, Tou Thao, ex-MPD officer charged in George Floyd’s killing, found guilty, StarTribune (May 2, 2023); Karnowski (AP). Ex-officer Thao convicted of aiding George Floyd’s killing, AP News (May 2, 2023). Most of the prior developments in the state and federal criminal trials of the four ex-officers are covered in this blog’s previous posts. (See List of Posts to dwkcommentaries—Topical: George Floyd Killing.)

[2] Minnesota Attorney General Ellison. Tou Thao convicted of 2^nd-degree manslaughter in murder of George Floyd (May 1, 2023). This document included a similar statement by Hennepin County Attorney Mary Moriarty.

Minnesota Court of Appeals Affirms Chauvin’s State Court Conviction for Killing of George Floyd

On April 17, 2023, the Minnesota Court of Appeals affirmed Derek Chauvin’s state court conviction, after a jury trial, for second-degree unintentional murder, third-degree murder and second-degree manslaughter in the May 2020 death of George Floyd.[1]

This blog already has provided extensive information about the actual killing of Mr. Floyd,[2] and Chauvin’s criminal trial,[3]

Minnesota Appellate Court’s Opinion[4]

The appellate decision was set forth in an unanimous 50-page decision authored by Presiding Judge Peter M. Reyes, Jr. that was joined by Appellate Judge Elise L. Larson and Senior Appellate Judge Roger M. Klaphake (serving by appointment as a Senior Judge of that court).

After the first 48 pages providing great details about the law and facts of this case, the court sets forth the following “DECISION:”

“Police officers undoubtedly have a challenging, difficult, and sometimes dangerous job. However, no one is above the law. When they commit a crime, they must be held accountable just as those individuals that they lawfully apprehend. The law only permits police officers to use reasonable force when effecting a lawful arrest. Chauvin crossed that line here when he used unreasonable force on Floyd.”
“We hold that, when a criminal defendant moves to change venue, continue trial, or sequester the jury alleging that publicity surrounding the trial created either actual or presumed juror prejudice, a district court does not abuse its discretion by denying the motions if it takes sufficient mitigating steps and verifies that the jurors can set aside their impressions or opinions and deliver a fair and impartial verdict. We also hold that a police officer can be convicted of second-degree unintentional felony murder for causing the death of another by using unreasonable force constituting third-degree assault to effect a lawful arrest. “
“In addition, we conclude that the district court did not abuse its discretion by (1) denying Chauvin’s request for a Schwartz hearing; (2) its jury instructions; (3) allowing the state to present seven witnesses on the use-of-force issue; (4) excluding from admission a presentation slide from MPD training materials; (5) denying Chauvin’s new-trial motion based on alleged prosecutorial misconduct; (6) excluding an unavailable witness’s out-ofcourt statement; and (7) departing upward from the presumptive range under the sentencing guidelines. We further conclude that Chauvin is not entitled to a new trial based upon the district court’s failure to ensure that sidebar conferences were transcribed and that any alleged cumulative error did not deny Chauvin a fair trial. Finally, we decline to address Chauvin’s challenge to his third-degree-murder conviction because the district court did not convict Chauvin of or sentence for this offense.”
“AFFIRMED.”

Conclusion

Chauvin has the right to petition the Minnesota Supreme Court to review this decision, but the Supreme Court may deny the petition without hearing arguments, and this blogger believes that such a petition should be denied.

In addition,as previously argued in this blog, Chauvin’s guilty plea to related charges in federal court should be another ground for rejecting any Chauvin appeals, but this argument was not mentioned by the Court of Appeals. [5]

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

[1] Hyatt, Minnesota Court of Appeals rejects Derek Chauvin’s request for new trial in George Floyd killing, StarTribune (April 17, 2023); Bailey, Minnesota appeals court rejects Chauvin’s request for new trial in Floyd killing, Wash. Post (April 17, 2023).

[2] See posts listed in “The Killing of George Floyd (May 25, 2020)“ section of List of Posts to dwkcommentaries Topical: George Floyd Killing.

[3] See posts listed in the “Derek Chauvin State Criminal Trial” section of List of Posts to dwkcommentaries Topical: George Floyd Killing.

[4] Minnesota Court of Appeals, Opinion, State v. Chauvin, No. A21-1228 (April 17, 2023);

[5] Derek Chauvin’s Appeal of State Conviction and Sentencing for Killing George Floyd, dwkcommentaries.com (Jan. 23, 2023).

City of Minneapolis Settles Other Derek Chauvin Cases

On April 13, 2023, the Minneapolis City Council agreed to pay two citizens nearly $9 million to settle their lawsuits alleging misconduct by former officer Derek Chauvin before his leading the now infamous killing of George Floyd in May 2021. [1]

Lawsuit by John Pope, Jr.

One lawsuit was brought by John Pope Jr., a black man, who will receive a $7.5 million settlement.

His lawsuit alleged that in 2017, when he was 14 years old, his mother was drunk when she called police because she was upset that he and his 16-year-old sister left their cell phone chargers plugged in, leading to a physical confrontation. It alleged Chauvin struck Pope in the head with a large metal flashlight at least four times. It says he then put Pope in a chokehold before pinning him to the floor and putting his knee on Pope’s neck. ”Chauvin would proceed to hold John in this prone position for more than fifteen minutes, all while John was completely subdued and not resisting,” the complaint alleged. ”Over those minutes, John repeatedly cried out that he could not breathe.”

The Pope complaint alleged that at least eight other officers did nothing to intervene. It also said Chauvin did not mention in his report that he had hit Pope with his flashlight, nor did he mention pinning Pope for so long. Chauvin’s sergeant reviewed and approved his report and use of force ”despite having firsthand knowledge that the report was false and misleading,” the lawsuit alleged.

Chauvin admitted to many of these allegations when in December 2021 he pleaded guilty to federal charges regarding Pope and was sentenced in July 2022 to 21 years on these charges.

Lawsuit by Zoya Code

The other lawsuit was brought by Zoya Code, a black woman, who will receive $1.375 million in her settlement. In September 2017 she was 14 years old and allegedly tried to strangle her mother with an extension cord. When Chauvin responded to a call about this situation, he put Zoya in handcuffs, slammed her head into the ground and put his knee on the back of her neck for 4 minutes and 41 seconds. Another officer at the scene did not intervene to stop Chauvin, and a responding police sergeant approved Chauvin’s use of force.

City Officials’ Reactions to These Settlements[2]

Also on April 13, immediately after the approval of the above settlements, Minneapolis Chief of Police Brian O’Hara and Mayor Jacob Frey announced their reactions.

The Police Chief stated the department is “forced to reckon once again with the deplorable acts of someone who has proven to be a national embarrassment.” But he also cited “systemic failure” within the Minneapolis Police Department. “I am appalled at the repetitive behavior of this coward and disgusted by the inaction and acceptance of that behavior by members of this department. Such conduct is a disgrace to the badge and an embarrassment to what is truly a very noble profession.”

“The Minneapolis police has a tradition to recycle the badge numbers that are no longer assigned to a current officer. [Chauvin’s badge, however,] betrayed and so egregiously dishonored, will be destroyed, and the badge number permanently removed from our rosters so that no future Minneapolis police officer should have to wear it.”

Minneapolis Mayor Jacob Frey apologized to all Chauvin’s victims and said that if police supervisors “had done the right thing, George Floyd would not have been murdered. He should have been fired in 2017. He should have been held accountable in 2017.” Frey added that the actions about his police badge was a “symbolic but important attempt” to purge the city of Chauvin’s legacy.

The Mayor’s written statement also discussed the progress that the City and MPD has made.

“Over the past couple of years, the City has continued a sustained push to shift the culture within the MPD. Since June 2020, Mayor Jacob Frey and MPD leadership have implemented sweeping changes, including overhauling the discipline matrix, multiple revisions to the Use of Force policy, updating the Field Training Officer program, a complete ban on neck restraints, affirmative duty to physically intervene, requiring officers to complete ABLE Training and more.”

“Most recently, the City and MPD entered into a court-enforceable settlement agreement with the Minnesota Department of Human Rights. Under the agreement, there is an entire section dedicated to Use of Force including:

Establishing new “levels” to more clearly define reportable uses of force.
Except for in critical incidents, requires each officer who uses level 2 or level 3 reportable use of force, and each officer who is physically present and witnessed the use of force, to accurately and thoroughly record all information in the required systems for each reportable use of force.
Requiring a supervisor to respond to the scene if significant force is used, which is based on the new reportable levels of force.
Requiring officer who uses reportable force to document the reason for the initial interaction.
Prohibiting officers from sharing information with another officer for the purpose of creating or producing force reports and documentation.”

“There are also many provisions within the agreement that bolster accountability, oversight, and supervisor review processes. Some examples include creating a new MPD Review Panel, chaired by the chief or their designee, to review, analyze and assess MPD’s enforcement practices, directing significant investment to new IT infrastructure such as new data collection, management and analysis systems to improve accountability, transparency and public safety, and new supervisory review processes that hold both supervisors and supervisees accountable.”

“The U.S. Department of Justice also has an ongoing pattern or practice investigation into the City and the MPD.”

“Additionally, the City recently approved an ordinance establishing a 15-member Community Commission on Police Oversight designed to improve transparency and accountability. This Commission should convene later this spring.”

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

[1] Salter, Minneapolis to pay $8.9M over Chauvin’s actions before Floyd, StarTribune (April 13, 2023); Salter, Minneapolis to pay $8.9M over Chauvin’s actions before Floyd, Assoc. Press (April 13, 2023).

[2] Orrick, Derek Chauvin’s badge will be destroyed and no cop will have number 1087 again, StarTribune (April 13, 2023); Mayor Frey, City reaches settlements in lawsuits involving former MDP officer Derek Chauvin (April 13, 2023).