Federal Criminal Trial for Killing of George Floyd: Other Witnesses for Defendant J. Alexander Kueng

Federal Criminal Trial for Killing of George Floyd: Other Witnesses for Defendant J. Alexander Kueng  

A prior post reviewed the testimony of Defendant J. Alexander Kueng. Here are summaries of the other witnesses he put forward.1

Joni Kueng. The first witness for Kueng was his mother, Joni Kueng, who testified briefly that he had played the peacemaker among the family siblings.

Steve Ijames, a use-of-force instructor and a retired assistant police chief in Springfield, Missouri, as a defense expert, testified that MPD’s training on an officer’s duty to intervene to stop other officers from using excessive force was ineffective because it relied too heavily on lectures instead of hands-on training and testing to ensure that  trainees learned the right lessons. Indeed, such training must emphasize demonstrations and testing to ensure that the attendees absorbed the subject matter. “Just because you sat through a class doesn’t mean you learned anything.”

Ijames, however, testified that Chauvin’s continued force after Floyd stopped fighting was unreasonable “beyond question.” But according to Ijames, Kueng lacked the training and experience to recognize that inappropriate use of force and thus it made sense for Chauvin to defer to Chauvin. However, Ijames admitted that it was conceivable that Kueng could have walked around and checked Floyd’s neck without moving or disturbing Chauvin.

Gary Nelson, a retired MPD lieutenant and field training officer, testified that it made sense for the other officers to let Chauvin take charge of the scene, especially since Kuenig and Thomas Lane were rookies. “Somebody needs to be in charge” and there isn’t always time to deliberate.

However, under cross examination, Nelson agreed that officers are not obligated to follow clearly unlawful orders and that they are accountable for their actions and inactions.

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  1. Mannix & Olson, Kueng testifies of attempting to place Floyd in squad: “I felt like I had no control,’ StarTribune (Feb. 16, 2022); Karnowski & Webber, Prosecutors question officer in Floyd killing about training, AP News (Feb. 17, 2022); Mannix & Olson, Kueng says he didn’t see ‘serious medical need’ when George Floyd fell unresponsive, StarTribune (Feb. 17, 2022).

 

 

 

Federal Criminal Trial for Killing of George Floyd: Defendant J. Alexander Kueng’s Testimony 

On February 16-17, Defendant J. Alexander Kueng took the witness stand in his federal criminal trial. Here is a summary of his testimony.[1]

Kueng first described his growing up in north Minneapolis, the oldest of five children as the son of a Black father and white mother. He attended Sheridan Elementary School and Patrick Henry High School. Police officers often came to his home because of problems created by his younger siblings. This prompted his not being a “fan of police” and later his decision to become a police officer to do a better job.

He went to college in New York State to play soccer. But after tearing his ACL, he returned home and graduated from the University of Minnesota with a degree in sociology and criminology. He then worked in security and loss prevention at Macy’s on Nicollet Mall and then was a community service officer with the MPD before the 2018 Super Bowl in the city.

On May 25, 2020, Kueng was a rookie policeman, only a few days off  probationary status.

Although he was in the first squad car on the scene and, therefore, was supposed to be the one in charge, everyone knew “it’s always the senior officer who is in charge,” i.e., Derek Chauvin, who was “very quiet, by the book, knowledgeable and commanding respect from other officers.” Chauvin was “fair but tough.”

At the scene, Kueng discussed his early attempt to push George Floyd into the back seat of a squad car. Floyd pushed back, slamming Kueng’s face on the Plexiglass divider in the car. “His behavior just went to extreme measures. He started shaking very violently and seemed to have no pain response.” This prompted Kueng to wonder if this man was suffering from excited delirium. “I felt I had no control. I felt like any moment he could shove me off.”

A little later Kueng, who was kneeling on George Floyd’s back, while Derek Chauvin had his knee near Floyd’s neck and Thomas Lane held his legs, testified that he was concerned about their ability to stop Floyd from thrashing around and, therefore, disagreed with Lane’s suggestion of changing the restraint. Instead, Kueng trusted and deferred to Chauvin as his senior officer.

Indeed, he agreed with his counsel’s suggestion that cadets are taught unquestioned obedience to their superiors, especially in light of probationary officers being subject to being  fired at will. He believed that Chauvin could still have him unilaterally terminated. As a result, he worried about that possibility on every shift. Therefore, he never told Chauvin to get off Floyd. “I would trust a 19-year veteran to figure it out.”

When Kueng could not find a pulse for Floyd, who was face down on the street, he told Chauvin that he could not find a pulse and assumed that it was up to Chauvin to check for a more accurate assessment and make decisions on the “difficult balance between scene safety and medical care.” Kueng also said he was unable to confirm that  Floyd did not have a pulse because he was unable to check for a carotid pulse as he had been trained.

Kueng also described his training of how to secure a site and the need to check someone’s neck pulse if he or she is in distress.

Under cross examination, Kueng was shown material from an emergency medical responder course he took that said someone might not be breathing adequately even though the person was talking and listed things to check for. Kueng agreed that such a situation called for reassessment and agreed that he was trained to roll someone on his side to help him breathe.

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[1] Karnowski & Webber, Officer Charged in Floyd killing says he deferred to Chauvin, AP News (Fe. 16, 2022); Mannix & Olson, Kueng testifies of attempting to place Floyd in squad: “I felt like I had no control,’ StarTribune (Feb. 16, 2022); Karnowski & Webber, Officer charged in Floyd killing says he deferred to Chauvin, AP News (Feb.17, 2022); Karnowski & Webber, Prosecutors question officer in Floyd killing about training, AP News (Feb. 17, 2022),  Olson & Mannix, Kueng says he didn’t see ‘serious medical need’ when George Floyd  fell unresponsive, StarTribune (Feb. 17, 2022),

 

 

Federal Criminal Trial for Killing of George Floyd: Defendant Tou Thau’s  Testimony

At the end of the prosecution’s case on February 14, Attorneys for all three officers immediately moved to have charges dismissed, but Judge Magnuson denied their motions from the bench, though he said he would consider written briefs on the subject.

Then two of the three defendants —J. Alexander Kueng and Tou Thau–said they intend to testify in their defense. The other defendant—Thomas Lane—at the start of the trial through his attorney said he also so intended, but on February 14, his attorney said Lane wanted to think about it overnight.[1]

Here then is a summary of the testimony of the first defendant, Tou Thao.

Tou Thao[2]

Thao said he first encountered police when he was 7 or 8 years old and his father beat him and a younger brother with an extension cord to break up their fight and when their mother intervened, the father beat her with the cord and retrieved a gun and threatened to kill them all. The three of them then fled to an aunt’s nearby house and called 911. When the police arrived, he accompanied them to the family home and unlocked the door so the police could arrest his father.

Years later after he flunked out of Anoka-Ramsey Community College and was working at Cub Foods, he decided to pursue his childhood interest in becoming a police officer. He is married  with three young children.

Thao testified that in his 2009 police training, pinning a suspect on the ground with a knee was presented as an appropriate technique in certain situations. Thao provided these photos from his training: (a) two recruits using their knees  in a “two-person prone handcuffing drill” with a person face-down on the ground; (b) two officers holding two “proned-out” (on their stomachs) people, one is handcuffed while the other is being handcuffed; (c) Thao and another classmate with an actor-suspect prone, hands behind his back, and Thao said the two classmates both were using their knees to restrain the “suspect;” (d) recruits marching in formation with sticks for riot control; (e) cops practicing with gas masks while being sprayed with tear gas; (f) trainees in Phalanx formation (V-shape). They also had cadence running when instructor would say something and the recruits would respond in chorus. Thao says he was never told it was improper to use knees to restrain except wrapping their legs around a suspect’s neck was prohibited.

After this training he was laid off and was unemployed before he was hired as a security guard at Fairview Riverside Hospital in Minneapolis for almost a year before he was re-hired by MPD. There he saw notations in hospital records for excited delirium. Sometimes a doctor or nurse asked him to restrain a patient.

On May 25, 2020, while eating dinner with his partner Derek Chauvin they were called to respond to an out-of-sector forgery call. It was a “Priority 1 call—get there fast, suspect still on scene.” While going there in a squad car with Chauvin, they were told over the phone or radio that there was a struggle with the suspect (Floyd) so they activated their car’s lights and siren, but after being told the scene was OK, they turned them off. Dispatch called them off the call, but they continued to Cup Foods because it had a reputation of being hostile to police as a well-known Bloods gang hideout.

Thao  said when he and Chauvin arrived, the other officers were struggling with Floyd to put him in a squad car and for Thao it was obvious Floyd “was under the influence of some kind of drugs” and in a state of “excited delirium.” Although Thao heard Floyd saying, “I can’t breathe,” he could not see anything that would have interfered with his breathing.

While at the scene, Thao pulled out of his squad car a hobble device to help restrain Floyd, but the officers decided not to use it because it would have complicated the work of the ambulance crew on their way there. Thao also called Dispatch to speed up the EMS response because he knew it was a matter of “life or death.”

Thao said he had “no idea” something serious had happened to Floyd until Minneapolis firefighters arrived on the scene after Floyd had been taken away in an ambulance. Until then, he testified, he had no idea something serious had happened to Floyd. In all of this, Thao never touched Floyd.

Under cross examination, Thao admitted that Floyd appeared unconscious at the scene, that officers have a duty to intervene when colleagues break the law and delaying CPR for even a minute can greatly diminish a person’s chances of survival.  He also said “it was a possibility” that when he was looking down at Floyd on the pavement, he knew what was going on. Thao testified that he was taught that it sometimes was OK to use neck restraints to help handcuff someone. But Thao agreed that using a knee to get someone under control is different from using it to restrain someone who’s already handcuffed — and that the neck should be avoided once someone is under control. Asked if what Chauvin was doing was a trained neck restraint, Thao replied, “I don’t believe so.”

Thao said he took a position on the street to serve as a “human traffic cone” to keep human traffic away from the other officers. He heard onlookers becoming more anxious about Floyd’s condition and calling on them to check his pulse. He, however, did not see any of the other officers roll Floyd over and perform CPR and presumed that meant Floyd was breathing and not in cardiac arrest. Thao also explained his body cam video at the scene.

At four minutes into restraint, Thao admits Floyd’s pleas were getting weaker. But, he says, that is a sign that the restraint was working. If Floyd had excited delirium, he needs to be kept on the ground. During the fifth minute, he admits no bystanders have stepped off the curb or taken steps toward him, but we’re trained not to underestimate a crowd. He refuses to admit that he could check on Floyd’s status. He did not tell his partners what bystanders were saying. Nor did he tell them that Floyd had “stopped speaking, went unconscious and that [he] had gotten requests from the crowd to check his pulse.”

In his prior interview by the MBCA, Thao said, “I could tell the officers on the ground were getting tired. Everyone’s breathing hard.”

Seng Yang.

Thao’s wife, Seng Yang testified briefly that her husband was law-abiding.

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[1] Olson & Xiong, At least two ex-officers plan to testify in federal civil rights trial as defense prepares to present its case, StarTribune (Feb. 14, 2022); Forliti & Karnowski, Prosecution rests in 3 cops’ trial in George Floyd killing. AP News (Feb. 14, 2022); Bailey, Prosecution’s case against former officers charged in George Floyd’s death ends with teenage witness, Wash. Post (Feb. 14, 2022);

[2] Vera & Kirkos, First of the officers involved in George Floyd’s death testifies during federal civil rights trial, CNN.com (Feb. 15, 2022); Xiong & Olson, Ex-officer Tou Thao takes the stand in civil rights trial for Floyd death, StarTribune (Feb. 15, 2022); Karnowski & Webber, Officer in George Floyd’s killing testifies about training, AP News (Feb. 15, 2022); Karnowski & Webber, Officer says he assumed fellow cops were caring for Floyd, AP News (Feb. 15, 2022); Barrett, Former Minneapolis Police Officer Takes Stand in Federal Trial Over George Floyd’s Killing, W.S.J. (Feb. 15, 2022); Olson & Mannix, Thao testifies he didn’t convey crowd’s concerns about George Floyd to Chauvin, Kueng takes the stand, StarTribune (Feb. 16, 2022); Karnowski & Webber, 2 officers testify at federal trial in George Floyd killing, AP News (Feb. 16, 2022).

 

 

Federal Criminal Trial for Killing of George Floyd: Prosecution Witnesses (Part III)

A prior post discussed the testimony of the first 11 prosecution witnesses: Kimberly Meline, Charles McMillian, Jena Scurry, Christopher Martin, Derek Smith, Genevieve Hansen, Jeremy Norton, Katie Blackwell, Dr. Bradford Wankhede Langenfeld, Andrew Baker and Christopher Douglas.[1]

Another post discussed the testimony of the next eight prosecution witnesses: Dr. David M. Systrom, Jr., Nicole Mackenzie, Vik Bebarta, McKenzie Anderson, Richard Zimmerman, Kelly McCarthy, Alyssa Funari and Matthew Vogel. [2]

This post provides resources that discuss the February 14th testimony of the prosecution’s final witnesses: Timothy Longo, Jr. and Darnella Fraser. [3]

 Timothy Longo, Jr.

A veteran of the Baltimore Police Department and Associate Vice President for Safety and Security at the University of Virginia, Longo testified that the three ex-MPD officers failed in their duty to care for George Floyd and that their restraining him on the ground was “inconsistent with generally accepted police practices.” More specifically, he faulted their “decision to put Floyd stomach-down on the ground, their failure to sit or stand him up and their failure to provide medical aid when he stopped breathing and showed no pulse.” Their duty “to care for . . . restrained subject[s] is ‘absolute’ because they’re no longer able to take care of themselves.”

Moreover, when one officer is using illegal force, other officers at the scene have a duty to “do something to stop the [illegal] behavior” and that duty is not dependent on rank or experience. “It’s a responsibility of everyone that’s there to do something.” In short, an officer has a duty to take “affirmative steps to stop another officer from using excessive force. “The term ‘intervene’ is a verb, it’s an action word. It requires an act . And what you do is, stop the behavior.”

Moreover, according to Longo, the appropriate legal force that may be used on a suspect is only enough to accomplish the objective in light of the seriousness of the alleged crime, whether the subject was a threat, environmental conditions and the presence of others at the scene.

Longo also testified that his review of the relevant evidence did not find any indication that Floyd posed a threat to anyone and that he simply did not want to get into a squad car because he was scared and having trouble breathing.

In short, in Longo’s opinion, Chauvin’s actions were “wholly contrary” to generally accepted police use of force policies.

On cross examination, Longo admitted he has close ties to the U.S. Department of Justice and Hennepin County prosecutors by testifying for the prosecution in the criminal case against former Minneapolis policeman Mohammed Noor. Yet he testified for two Baltimore police officers in the 2015 death of Freddie Gray in the back of a police van even though Gray was handcuffed with his legs tied.

Darnella Fraser[4]

Fraser, then age 16, was at the scene of George Floyd’s detention by the four MPD police officers and took the now infamous six-plus minute video of that restraint. Moments after she took the stand, she began crying and said, “I can’t do it. I’m sorry.” Then after the Judge took a short break, she resumed her testimony. She testified that she saw Floyd on the ground with Chauvin’s knee on his neck. He looked very uncomfortable and kept saying, “I can’t breathe.” At the same time, Thao looked like he was protecting and patrolling the area. I didn’t see George Floyd resist at all. The only thing I saw him do was really try to find comfort in his situation—try to breathe and get more oxygen.”

“I knew Floyd needed medical care when he became unresponsive. Over time, he kind of just became weaker and eventually stopped making sounds overall.”

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[1] Federal Criminal Trial for Killing of George Floyd: Prosecution Witnesses (Part I), dwkcommentaries.com (Feb. 2, 2022).

[2] Federal Criminal Trial for Killing of George Floyd: Prosecution Witnesses (Part II), dwkcommentaries.com (Feb. 11, 2022).

[3] Olson & Xiong, Veteran officer: Cops failed in their duty to provide care for George Floyd while in custody, StarTribune (Feb. 14, 2022); Olson & Xiong, At least two ex-officers plan to testify in federal civil rights trial as defense prepares to present its case, StarTribune (Feb. 14, 2022). Forliti & Karnowski, Expert takes issue with officers’ conduct in Floyd killing, AP News (Feb. 14, 2022); Foriiti & Karnowski, Prosecution rests in 3 cops’ trial in George Floyd killing. AP News (Feb. 14, 2022),

[4] See also these posts to dwkcommentaries: Derek Chauvin Trial: Week Four (April 2, 2021); Witnessing (April 25, 2021); Darnella Fraser’s Continued Witnessing (May 26, 2021); More Honors for Darnella Fraser (June 12, 2021).

Federal Criminal Trial for Killing of George Floyd: Prosecution Witnesses (Part II) 

On Monday morning (February 7) the federal criminal trial of former Minneapolis policemen (J. Alexander Kueng, Thomas Lane and Tou Thau) resumed in the federal courthouse in St. Paul before U.S. District Judge Paul Magnuson and a jury of 12 and 6 alternates. During the first phase of the trial (January 24-28, 31 and February 1-2), the prosecution presented 11 witnesses.[1]  The following is a summary of the testimony of the eight prosecution witnesses who testified in this resumption of the trial through February 11.[2]

Dr. David M. Systrom, Jr.

A physician at Boston’s Brigham and Women’s Hospital and assistant professor of medicine at Harvard Medical School and an expert witness for the prosecution, Dr. Systrom first described how the lungs and diaphragm work: breathing in compresses the stomach, spleen and liver with carbon dioxide being the waste product of cellular metabolism, and if it does not leave the body, it will build up in blood and tissue (acidosis.)

In his opinion, George Floyd died of asphyxia due to compression of his upper airway and inadequate breathing caused by being held in prone position. Yet this “was an eminently reversible respiratory failure right up until the time he lost consciousness.” It “was quickly reversible if the impediments to breathing were removed.” But they were not removed, and the “fatal combination” of “obstruction and restriction” of his breathing ultimately caused him to lose consciousness and his heart to stop.

Dr. Systrom noted how “Floyd’s position on the ground with his arms cuffed behind his back and the officer on top of him was problematic” as the arms and shoulders work as “adjunct respiratory  muscles” to help create space for full diaphragmatic breathing.  This restricted breathing resulted in low lung volume and inability to draw sufficient breathe leading to complaints about “shortness of breath” followed by Floyd’s loss of consciousness.

Also supporting Systrom’s opinion was Floyd’s end-tidal carbon dioxide level of 73 milliliters of mercury, twice the normal level and “life threatening” and often associated with an increase in the hydrogen ion concentration in the blood and low oxygen. In addition, he testified that there was no evidence suggesting a heart rhythm disorder or effects of methamphetamine or fentanyl.

Even after Floyd’s heart stopped, Dr. Systrom testified, there was still a chance to save him if CPR had been started immediately, but that did not happen.

Nicole Mackenzie

MPD’s medical support coordinator, Mackenzie testified that Kueng and Lane recently were in her MPD academy “emergency medical responder” class. They were taught about the need to roll subjects into the “side recovery position” so they could breathe instead of keeping them prone on their stomachs. They also were taught that responders have a duty of care to people in medical emergencies.

Kueng and Lane, she testified, acted inconsistently with that training when they continued to restrain Floyd after he became compliant and showed clear signs of needing help, including struggling to breathe.

When Mackenzie was asked about Thao, his attorney’s objection was sustained because Thao was not present in the video shown by Mackenzie.

That attorney presented PowerPoint training materials used by MPD until last year showing officers pinning a man down by his neck when responding to an excited delirium call and another showing a nude man punching through a wooden fence and fighting off a horde of police officers trying to subdue him. Under those circumstances, Mackenzie said, “your normal techniques for compliance might not work” and restraining someone, even with a knee, might be a life-saving measure.

Vik Bebarta

Another prosecution expert witness was Vik Bebarta, professor of emergency medicine, toxicology and pharmacology at the University of Colorado in Denver. She testified that Floyd died from “a lack of oxygen to his brain” when he was “suffocated and his airway was closed [and] he could not breathe.” “When the airway is blocked, you pass out, stop breathing and your heart stops.”

In addition, he said that the amounts of methamphetamine and fentanyl were too low to have caused his death. Videos of Floyd in Cupp Foods before the encounter with the police outside showed him carrying a banana and talking to clerks and other customers. Floyd was alert. “There is no sign that he was showing any signs of an imminent drug overdose.”  In contrast, someone “heavily impaired would not laugh or smile or have a conversation.” In addition, Floyd subsequently was able to walk handcuffed with police from his car to the police car across the street.

Bebarta also said Floyd did not display any symptoms typically associated with the excited delirium condition, such as high pain tolerance, superhuman strength and endurance and he did not die from what would be referred to as that condition.

Under cross examination, Bebarta admitted that police officers do not have the education and experience of medical doctors, but they learn basic life support and “have the ability to check a pulse and check for breathing.”

Bebarta also noted the three-minute lag between (a) paramedic Derek Smith’s arriving on the scene and checking Floyd’s carotid artery for a pulse  and (b) the start of chest compressions in the ambulance when every minute of delay in starting CPR reduces a patient’s chances of survival by 10%.

Under cross-examination by Paule, Bebarta says the slang “speedball” refers to Heroin and cocaine. Sometimes people “rectally” take drugs that sometimes is referred to as “hooping.” “Excited delirium” is not a diagnosis and does not have a good list of symptoms, but often shows as agitation with psychosis. Floyd did not exhibit delirium.

McKenzie Anderson

A scientist with the Minnesota Bureau of Criminal Apprehension, Anderson was in charge of processing Floyd’s car and one of the squad cars on May 25, 2020. She testified that pills found in his car tested positive for methamphetamine.

Under cross-examination by Gray, Anderson says on 5/27/20 she seized from Floyd’s car: shoes, strap and blood stains. She did not see or seize any pills. This search was looking for blood evidence, counterfeit money and a cell phone.

She also said that a lab determined that a pill from the squad backseat contained methamphetamine and Floyd’s saliva and thus probably came from his mouth. From Floyd’s car she seized $20 bills that turned out to be counterfeit, which are illegal to possess.

In a December 2020 search of Floyd’s car, she collected two pills that later were identified as a “mixture of fentanyl and methamphetamine.”

Richard Zimmerman

A MPD Lt. and its most senior officer, Zimmerman sais if an officer (from lowest in rank to chief) sees another officer using too much force or doing something illegal, you need to intervene and stop it.

On 5/25/20 at home, he received call to go to 28th & Chicago because an arrestee had to go to hospital. There he met officers outside Cup Foods about 90 minutes after Floyd died. He asked Lane and Kueng what’s going on.

Thomas Lane’s body cam video showed him telling Zimmerman that they did not know Floyd’s condition and that Floyd seemed like he was on something, “just kind of paranoid.” Nor did Lane say that Floyd had been pinned under Chauvin’s knee for more than nine minutes or that the officers could not detect Floyd’s pulse or that he had appeared to stop breathing.

Zimmerman testified, “The knee on the neck—the officers should have intervened at that point and stopped it. . . . It can be deadly.”  And “rank and seniority don’t change the duty to intervene.” Moreover, Zimmerman admitted he had thought poorly of Chauvin and “I think it’s pretty much known throughout the department that he’s a jerk.”

Kelly McCarthy

McCarthy, the Mendota Heights Police Chief, testified in his role as Chair of the Minnesota Board of Peace Officer Standards and Training, which licenses all officers in Minnesota. He said, Once someone is in your custody [as an officer], they are essentially your baby. You have restricted their freedom of movement. . . so there are things they can no longer do for themselves, so because you’re the one who took them into custody, you are now responsible for those things.” These officers’ training includes learning about “positional asphyxia” and the risk of handcuffing someone, use-of-force and civilians’’ constitutional rights. Training on use-of-force and firearms is annually required.

Alyssa Funari

On May 25, 2020, Ms. Funari, then 17 years old, was at Cupp Foods and observed the police restraining George Floyd on the pavement. His distress, she testified, was obvious to several bystanders, as they observed the policemen ignore pleas to relent and render aid. She said she “instantly knew Floyd was in distress. . . He was moving, making facial expressions that  he was in pain. He was telling us he was in pain.” She warned the officers that Floyd was near unconsciousness. At one point, she “observed that over time he was slowly becoming less vocal and he was closing his eyes. He wasn’t able to tell us he was in pain anymore and he was just accepting it.” She said, “Is he talking now? He’s about ready to knock out.” Yet she did not see any of the officers provide aid to Floyd.

Under cross examination by Thao’s attorney, Robert Paule, Funari said, I “believe he [Thao] did look” at the other officers restraining Floyd. “He might not have been watching the whole time, but he knew what was going on.” He turned around “a few times” to observe the other officers and Floyd .

Matthew Vogel

A FBI special agent, Vogel presented snippets of bystander and police video with timelines and transcripts to help the jurors sort out sometimes confusing videos. It included video of Kueng and Lane talking to Sergeant David Pleoger about what had happened, but saying incorrectly that Floyd was still breathing when paramedics arrived and not saying anything about their inability to find Floyd’s pulse.

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[1] Federal Criminal Trial for Killing of George Floyd: Prosecution Witnesses (Part I), dwkcommentaries.com (Feb. 2, 2022).

[2] Olson, Pulmonologist says officers could have saved George Floyd’s life, StarTribune (Feb. 7, 2022); Karnowski & Webber (AP), Lung expert: Officers could have saved George Floyd’s life, AP News (Feb. 7, 2022); Mannix & Olson, Officers ‘inconsistent’ with medical training when they detained George Floyd, says police trainer, StarTribune (Feb. 8, 2022); Karnowski (AP), Police trainer testifies: Officers failed to aid Floyd, Twin Cities Pioneer Press (Feb. 9, 2022); Olson, Second physician testifies George Floyd died of asphyxia, not drugs or heart attack, StarTribune (Feb. 9, 2022); Karnowski (AP), Toxicologist: Drugs, ‘excited delirium’ didn’t kill Floyd, Assoc. Press (Feb. 10, 2022); Xiong & Olson, New footage played in federal trial shows officers did not tell superior that Floyd had no pulse, appeared to stop breathing, StarTribune (Feb. 10, 2022); Karnowski (AP), Lieutenant: Officers should have intervened in Floyd killing, AP (Feb. 10, 2022); Bailey, Officers charged in George Floyd’s killing omitted key details from the scene, Minneapolis officer testifies, Wash. Post (Feb. 10, 2022); Olson & Xiong, New body camera video: Officers didn’t tell second supervisor about restraint of Floyd, StarTribune (Feb. 11, 2022); Forliti & Karnowski, Teen bystander: Knew instantly Floyd was ‘in distress,’ Asoc. Press (Feb. 11, 2022); Live: Federal trial of 3 former Minneapolis officers in George Floyd death, StarTribune.

 

 

 

 

 

 

Federal Criminal Trial for George Floyd Killing: Prosecution Witnesses (Part I)

Here is a summary of the testimony of prosecution witnesses on January 24-28, 31 and February 1-2. On February 2 at 10:00 a.m. the trial was recessed until Monday, February 7, 9:30 a.m. because Defendant Thomas Lane has COVID.[1]

Kimberly Meline.

As the first trial witness, Meline established foundation for various videos of the police encounter with George Floyd on May 25, 2020, near Cup Foods in south Minneapolis. This included synchronizing some videos to play side by side.

A 34-minute video showed officers Kueng and Lane walking into Cup Foods and then walking to the car outside where Floyd is at the steering wheel. Lane points his gun at him and asks him to put his hands on the steering wheel. He does not comply and one of the officers says, “When you’re moving around like that, that makes us think way more is going on than we even know.”

This video then shows Lane and Kueng cuff Floyd and take him to a squad car and try to put him inside. Floyd objects, “I’m not that kind of guy. I’m claustrophobic.” He also says “I can’t breathe.” After Floyd is placed on the pavement near a police vehicle, the video captures him saying, “I can’t breathe. Mama, I love you.”

Another video, this from Kueng’ body-worn camera, was fixed on the passenger-side rear tire of a squad car, as bystanders can be heard shouting from the sidewalk and Floyd is unresponsive. A bystander, Donald Williams, says, “You think that’s cool, bro? You’re a bum for that.” This video also shows Thao holding back a group of bystanders on the sidewalk.

Charles McMillian

McMillian, a 71-year -old neighbor, was the first witness on the scene on May 25, 2020, and told Floyd to get in the back of the squad car and make it easy on himself because “You can’t win.” With tears, McMillian said, “I knew something bad was going to happen to Mr. Floyd . . . that he was going to die.”

Jena Scurry

A 911 dispatcher, Scurry testified that the officers asked for a “Code 2” ambulance without lights and sirens for a “mouth injury.” They did not report that Floyd was having trouble breathing. If they had, she could have sent “rescue” medical help from the fire department which could get to the scene faster than from Hennepin County EMS. A few minutes later she “grew concerned” that the officers appeared so long on a city surveillance camera that she called and reported this to a Third Precinct sergeant

Christopher Martin

At 19 years of age, Martin was working the evening shift at Cup Foods in May 2020 and accepted a blue-hued, obviously counterfeit $20 bill from Floyd to pay for a pack of cigarettes. At the instruction of the store manager, Martin went outside to bring Floyd back inside. Floyd, he testified, looked high and did not want to return to the store so the manager had another employee call 911.

A few moments later Martin saw a crowd outside the store and went outside to see a police officer with his knee or his body weight on Floyd’s neck, who appeared “dead . . . not moving.”

Derek Smith

A paramedic for Hennepin Healthcare, Smith testified that he and his partner arrived at the scene on a Code 2 non-emergency call. He immediately noted that Floyd had large pupils, no pulse and a chest not rising and falling and then told his partner “I think he’s dead. I’d like to provide patient care away from the scene” because “I knew I would have to work cardiac arrest, probably taking off his clothes.” They removed the body to the ambulance and started to set up lifesaving equipment while officer Lane attempted CPR. Yes, Lane was helpful to the paramedics.

Genevieve Hansen

An off-duty Minneapolis firefighter, while on a walk, Hansen came upon the scene near Cup Foods on May 25, 2020, and observed the lights of a squad-car,  “a woman was yelling that they were killing him” and “the amount of people that were on top of one person.” She also noticed “there were no medics or fire [department personnel] there, so there was no medical attention available.” The man on the ground wasn’t moving, his face was really swollen and smashed to the ground. She saw fluid coming from his general body and thought he could have emptied his bladder, which” is a sign of death or near death.” (Later, she says she learned the fluid was runoff from vehicle exhaust.) She was “concerned that he needed help.”

Hansen offered to help and urged one of them (Thao) to check the man’s pulse only to be rebuffed and told to get back on the sidewalk. This officer said something like, “If you’re really a Minneapolis firefighter then you should know better than to get involved.” This prompted Hansen to yell and swear at the officers because the man on the ground needed help immediately and he wasn’t not getting it, so I was just trying everything.”

Jeremy Norton

Norton, a Minneapolis fire captain, arrived at the scene to provide EMS and heard someone yell, “You all killed that man,” to the officers. In the Cup Foods store Norton met and talked with Hansen, who said she thought the officers had killed Floyd. Yet Norton said the officers did not seem concerned. In response to a question by Robert Paule, Thao’s attorney, about “excited delirium,” Norton said it was part of firefighters training, but the American Medical Association had concluded that it lacked scientific evidence as a legitimate diagnosis.

At the end of the day on the 26th, Plunkett for the third time called for a mistrial, but the Judge denied the motion while telling the prosecution to be careful with leading questions.

Katie Blackwell

As a Police Department Inspector, Blackwell oversees training, which includes a medical component and scenarios officers may face in the field. MPD core values: trust, accountability and professional service. The Field Training Handbook asserts these values: (1) public safety and justice, not just absence of crime; (2) being truthful; (3) holding each other accountable; and (4) not committing public or private conduct that would sully the department.” Phases of training: (1) being in the field with a field training officer, getting comfortable with the public and computer system; and (2) being in a different precinct with a different field training officer.

MPD Code of Conduct: all employees to obey the code of conduct, rules, ordinances, laws. “The integrity of police service is based on truthfulness.” Other sections talk about being fair, unbiased and professional. “Required to immediately report any violation of rules, including but not limited to unreasonable use of force—regardless of rank.” Use of force starts with police presence and escalates to use of force. Use the lowest level of force necessary to detain someone. Once there is compliance, force stops. “Sanctity of life and protection of the public should be the cornerstones of MPD’s use of force policy.” If a person has stopped resisting, the person is complying. This includes protecting persons suspected of violating the law from police use of unnecessary force. Officers have a duty “to stop or attempt to stop another officer when force is being inappropriately applied or is no longer required.”

The Department’s officers have “a duty to intervene because there is an obligation for sanctity of life to protect the public and fellow employees.” This includes a “duty to “stop or attempt to stop” another officer ”when force is being inappropriately applied or is no longer required.” It also includes “rendering medical aid consistent with training, including CPR, chest seal/tourniquet, administering Narcan, checking breathing. These requirements take into consideration an individual’s medical conditions, mental impairment, developmental disability, physical limitations, language barriers, drug or alcohol use and behavioral crisis.

MPD policy defines neck restraint as “restricting the blood flow” and “chokehold” can be used before shooting someone. Although policy says “neck restraint” can be used with a leg, officers are not trained to do so. “Conscious neck restraint” can be used when someone is actively resisting arrest and usually takes 15 seconds. Hobble is used to prevent someone from kicking and being combative. Prone position sometimes is used to get someone handcuffed, but then turn the person on his or her side so they can breathe easier.

“Sanctity of life and protection of public shall be the cornerstones of the MPD’s use of force policy. No matter what kind of force we’re using, we have to protect people.” “MPD employees shall only use the amount of force ‘objectively reasonable’ in light of circumstances: the amount and type of force that would be considered rational and logical to an objective officer on the scene, supported by facts and circumstances known to an officer at the time the force was used.”  Force can be used for “lawful arrest, execution of legal process, enforcing order of court, legal duties.”

MPD crisis intervention policy requires police to treat vulnerable people with compassion. Must call EMS and “render first aid until EMS gets there.” MPD policy for police to not stop people from videotaping police events.

Blackwell worked with Chauvin at third precinct for many years.

Blackwell reviewed Thao’s 2018 training–“Defensive Tactics In-Service.” It said, “Sanctity of life and protection of public. Based on 4th amendment reasonableness standard. Restraint is a form of force. Proportional force based on what the subject is doing. Need to use lowest level of force and justify any use of higher level.” Use of force: active aggression (being combative or trying to assault), active resistance, passive resistance and flight.

MPD academy tries to get officers comfortable correcting one another. “You will be held responsible for your actions and inactions.”

Blackwell also testified that the first officers on the scene, Lane and Kueng, under MPD policy, were in charge of the scene and should not have deferred to Chauvin, especially when Chauvin violated policy by putting his knee on Floyd’s neck and not removing it as Floyd was gasping for air and ultimately dying.

Initially Floyd showed active resistance and aggression when officers were trying to put him in back seat of squad car, which would have justified the officers using a taser on him.

Chauvin’s actions were inconsistent with policy when he had his knee on Floyd’s neck and pulled on his hand for “pain compliance.”

Three of the four officers who arrested and restrained Floyd did not act in accordance with use-of-force policy. Officers were not really communicating with each other. When Floyd went unconscious they were supposed to move him, but did not do so. Lane held Floyd’s legs. They did not move Floyd on his side as they were supposed to. Lane suggested doing so, but no one did so. When Floyd went unconscious, officers were supposed to render aid, but they did not do so. When Floyd had no pulse, they were supposed to perform medical aid, but they did not do so. MPD policy requires an officer to intervene to stop use of inappropriate force. The three officers failed in their duty to intervene.

There was a crowd of bystanders, but they were on sidewalk following orders and were not posing any threat to the officers.

Plunkett cross-examination: Blackwell disagrees with assertion that senior leadership establishes culture of organization and training. Instead recruits should mirror in field what they learned in training. Policy manual has 537 pages, and officers are supposed to know it. There are annual tests of some parts. DOJ is investigating pattern and practice of MPD, including alleged deficiency in officer training.

Paule cross-examination. The attorney for ex-officer Thao, Robert Paule, got Blackwell to agree that a MPD training slideshow cited a draft report by the city’s civil rights division that found a sharp rise in ketamine injections of detainees and examples of police asking emergency medical services for the sedative by name and joking about its powerful effects along with a footnote dismissing the report as a “reckless use of anecdote” that will “prevent the saving of lives.” Blackwell also testified, “If you’re dealing with somebody who is displaying signs of excited delirium, it can be very dangerous.”

Paule also identified other slides from the MPD course on its “excited delirium” training that had officers pinning down suspects with their knees, similar to the way Chauvin pinned down Floyd.

Dr. Bradford Wankhede Langenfeld

Langenfeld went into stabilization room for most critical patients to await Floyd’s arrival as a cardiac arrest patient. Floyd arrived at 8:55 p.m. Upon arrival, paramedics said no one at scene had started CPR before they arrived, and a minute’s delay in CPR reduces chances of success from cardiac arrest by 10-15%. But paramedics in ambulance tried resuscitation for about 30 minutes before arrival at hospital, but never found a pulse.

At hospital they continued compressions with Lucas device and gained additional IV access for more medications. Replaced windpipe tube with a more secure tube for better venting and arterial line. Dr. Langenfeld believes most likely cause of this cardiac arrest was “mechanical asphyxia” (inability to expand chest wall) and “excited delirium” or “severe agitated state.” There was a mouth injury which made him think the patient had been pinned down in prone position. Fentanyl by itself is a depressant, shows down breathing, but would not lead to severe agitated state.

After Dr. Langenfeld had worked on Floyd for about 30 minutes, cardiac arrest had come to near standstill; no clinical improvement; so doctor declared Floyd dead. When the heart stops, tissues and brain start to die, and irreversible brain damage occurs within 4-6 minutes of cardiac arrest.

Cross-examination by Paule (Thau’s attorney). Dr. Langenfeld says excited delirium is controversial because it is used almost exclusively when law enforcement is restraining an individual and predominantly people of color, thus raising concerns about bias and most often it is a pre-hospital diagnosis, which is condemned by  AMA and which typically is used for someone who is delirious, erratic, unable to be verbally de-escalated, sweaty.

If Floyd had been using illegal drugs and sweating profusely, this possibly could have been cause of cardiac arrest.

Cross examination by Plunkett (Kueng’s attorney). If someone had consumed methamphetamine and fentanyl and then was struggling hard, that possibly could kill someone.

Redirect by prosecution. Cardiac arrest from acidosis can be reversed by prompt chest compressions and CPR ventilation. After reviewing video of Floyd’s arrest, Dr. Langenfeld believes Floyd was not subject to severe agitation that would lead to cardiac arrest.

Andrew Baker

A medical examiner, Baker examined Floyd at HCMC and testified that his heart and lungs stopped due to restraint by law enforcement. “ I view his death as being multifactorial” due to the duration of his “interaction with law enforcement” for 9.5 minutes along with his already enlarged heart and hardened arteries. However, he denied that the fentanyl and methamphetamine found in Floyd’s body and carbon monoxide poisoning were contributory factors.

Under cross examination by attorney Paule, Baker testified that he and his office were targets of protests after Hennepin County Attorney Mike Freeman had published Baker’s preliminary autopsy findings that highlighted Floyd’s cardiovascular disease and “potential intoxicants” in his body. These protests included threatening phone calls, some of which targeted specific employees in his office and their families and included their home addresses. But Baker said the final conclusions on Floyd’s death were neither partisan nor driven by outside pressure. Baker also testified that excited delirium was not a cause of death.

Kueng’s attorney, Thomas Plunkett, showed Baker a photo of Kueng restraining Floyd, and Baker said that that position “wouldn’t impair his ability to breathe.” Baker gave the same answer to a question by Lane’s attorney (Earl Gray) about Lane’s position on Floyd.

Christopher Douglas

Attorney Gray objected to having Douglas testify because he trained Lane as a corrections officer in 2017 and, therefore, is not relevant. The objection, however, was overruled.

Douglas works for the Hennepin County Department of Community Corrections as the lead safety trainer for the County’s Juvenile Detention Center, where Lane worked before joining MPD. Douglas testified regarding the training about positional asphyxia that Lane would have received at that Center in 2017 and 2018. It emphasized getting “control of the subject quickly,” using arms instead of body weight while avoiding putting pressure on the torso and neck and monitoring the subject for medical issues and claiming inability to breathe. The trainees also learn de-escalation and physical restraint techniques, which aim to keep someone vertical and on their feet making it easier to transport someone and less likely to cause injury.

Comment

According to Holly Bailey, a Washington Post reporter, defense cross examination of Katie Blackwell suggests that a major defense argument will be that “Minneapolis officers are not given adequate scenario training on intervention policies and they operate in a militarized environment where younger officers are strongly discouraged from disagreeing with senior officers.” Thomas Plunkett, Kueng’s attorney, has argued that Kueng had received “inadequate training” and that the U.S. Justice Department currently is investigating the MPD, including its training programs.

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[1]  The above summary of witness testimony is based upon the following newspaper articles: Live: Federal trial of 3 former Minneapolis officers in George Floyd death, StarTribune; Mannix & Olson, Cup Foods clerk who interacted with George Floyd tells jurors of events leading to killing, StarTribune (01/25/22);  Olson & Mannix, Day 3 of testimony underway as paramedic describes how George Floyd was likely dead at scene, StarTribune (1/26/22); Mannix & Olson, ‘I think they killed him:’ Off-duty firefighter testifies of futile attempts to help unresponsive George Floyd, StarTribune (1/26/22); Mannix & Olson, Minneapolis police inspector testifies of training protocol in civil rights trial, StarTribune (1/27/22); Mannix & Olson, Kueng and Lane should have been in charge at George Floyd arrest, protocol not followed, StarTribune (1/28/22);  Mannix & Olson, Defense says poor training, paramilitary culture, stopped officer from intervening in George Floyd’s death, StarTribune (1/28/22); Bailey, Officers charged in George Floyd’s killing had been taught to intervene, police trainer testifies, Wash. Post (1/28/22); Jany & Furst, Minneapolis police training, policies under microscope in trial of 3 ex-cops in George Floyd’s death, StarTribune (1/30/22); Mannix & Olson, Testimony: Minneapolis police trained to ignore city’s civil rights report on ketamine, excited delirium, StarTribune (1/31/22); Olson & Mannix, Defense asks medical examiner about outside pressures during George Floyd death investigation, StarTribune (2/1/22); Olson & Mannix, Trial of ex-Minneapolis cops postponed by COVID diagnosis, StarTribune (2/2/22).

Federal Criminal Trial for George Floyd Killing: Opening Statements

The trial of J. Alexander Kueng, Thomas Lane and Tou Thao began on January 24 with the opening statements of the prosecution and defense attorneys.[1]

Prosecution’s Opening Statement

Assistant U.S. Attorney Samantha Trepel said that when police officers take a person into their custody, those officers are responsible for keeping that ensuring a person’s safety. “In your custody is in your care. It’s not just a moral responsibility, it’s what the law requires under the U.S. Constitution.” Then someone signs “up to carry a gun and wear a badge [it] comes with life or death duties.”

“Here, on May 25, Memorial Day 2020, for second after second, minute after minute, these three CPR-trained defendants stood or knelt next to officer Chauvin as he slowly killed George Floyd right in front of them” and each of them  “made a conscious choice over and over again not to act. They chose not to intervene and stop Chauvin as he killed a man slowly in front of their eyes on a public street in broad daylight.” Eventually  “the window to save Floyd’s life slammed shut.”

Defense Counsels’ Opening Statements

Before their opening statements, at least two defense counsel asked Judge Paul Magnuson to declare a mistrial due to the prosecution’s alleged “argumentative” opening statement, but the Judge denied the request.

Attorney Robert Paule, representing ex-officer Tou Thau, acknowledged “the tragedy” of Mr. Floyd’s death, but “a tragedy is not a crime.” He reminded the jury that the familiar video by a young woman at the scene did not show why the officers were at the scene in the first place– to investigate a report of a counterfeit $20 bill and Mr. Floyd’s erratic behavior and failure to follow officers’ directions.

Attorney Thomas Plunkett said his client, ex-officer J. Alexander Kueng, was a “rookie officer” who was deeply influenced by Chauvin, the most senior officer on the scene with 19 years on the street, a field training officer (FTO) in Third Precinct “for a very long time” and Kueng’s FTO. Such a FTO “has great control over a young officer’s future” in the Department and can recommend the termination of such a newcomer. In order for Kueng to be found guilty, the jury must conclude that he acted willfully, which requires proof that he acted with a bad purpose to disobey the law to deprive Floyd of his rights.

However, there is no such proof. Moreover, the Minneapolis Police Department’s “training on ‘intervention’ is little more than a word on a PowerPoint.” With senior officer Chauvin in charge, Kueng did not have the experience or proper training to deal with the situation as it unfolded or how to intervene. Nevertheless, he checked Floyd’s pulse twice and told Chauvin he could not detect a heartbeat.

The video taken by a bystander was not what Kueng saw. It is not what he perceived. It is not what he experienced.

Attorney  Earl Gray for ex-officer Thomas Lane, emphasized that Floyd at 6 foot four and 225 pounds “was all muscle” and when he reached around in the console of his vehicle, Lane feared he might be reaching for a gun. Later Lane did not put pressure on Mr. Floyd, but just had his hands on the suspect’s feet. Lane suggested to Chauvin they should “hobble” Mr. Floyd on his side, but Chauvin said “no” so it was not done. Lane also suggested that the officers should roll Mr. Floyd on his side, but Chauvin said, “no, he’s good where he is. Lane asked Chauvin if Floyd was experiencing “excited delirium,” when someone after fighting wakes up with super-human strength,” which he learned about at his police training, but Chauvin rejected the suggestion.  When the ambulance arrived, Lane asked to ride with Floyd and performed chest compressions on him and was “not deliberately indifferent at all.”

Finally the attorney said Mr. Lane would testify at the trial.

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[1] Mannix & Walsh, Opening Statements Monday in federal trial of 3 ex-cops implicated in George Floyd’s death, StarTribune (1/24/22); Live: Federal trial of 3 former Minneapolis officers in George Floyd death, StarTribune (1/24/22); Bailey, Opening statements to begin in federal trial over George Floyd’s killing, Wash. Post (1/24/22); Arango, George Floyd’s Civil Rights Are Focus in Opening Arguments of Federal Trial, N.Y. Times (1/24/22); Ajasa, Trial begins of three ex-police officers present at George Floyd murder, Guardian (1/24/22)

 

 

Importance of Pending Federal Criminal Case Over Killing of George Floyd

A Professor of Practice at the Georgetown University Law Center, Christy Lopez, asserts that the current federal trial of the three ex-officers for not intervening to prevent the death of George Floyd may be even more important than the state case that convicted Derek Chauvin for murder and manslaughter of Mr. Floyd. She says, although “a duty to intervene to prevent another [police] officer from using unreasonable force has existed for 50 years, it has led to few federal prosecutions for same. [Moreover, the professor has not found any] federal prosecutions of lower-ranking officers for failing to intervene to prevent a higher-ranking—or even a peer officer—from using unreasonable force.” [1]

Reasons for Police Intervention To Stop Excessive Force

According to Professor Lopez,”this trial could set federal precedent for holding officers criminally culpable . . . for failing to prevent another officer — even a peer or superior officer — from committing . . . [civil rights violations]. And that precedent could add momentum to a badly needed sea change in policing — toward a shared expectation that every officer will take all feasible steps to prevent another officer from violating constitutional rights, regardless of rank.”

“It is difficult to overstate the impact such a change culture would have. As I wrote just a few days after Floyd’s death, our central concern should be preventing deaths like his; no after-the-fact measure of accountability can make up for the brutal, unnecessary snuffing out of a human life. Intervention by officers in real time is often the best way — sometimes the only way — to prevent harm.”

“Further, building a culture of intervention is an essential component of broader efforts to transform policing and public safety. When officers stand by while another officer causes needless harm, they commit a separate, in some ways more corrosive, damage: the delegitimizing of police and rule of law that takes hold when abuse committed by bad-apple officers is tacitly condoned by passive bystander officers.”

“[The particular facts of Floyd’s murder underscore the importance of training officers in how to effectively intervene. Turning the legal duty to intervene into routine practice requires building a policing culture that supports active bystandership. Accountability — criminal, civil and administrative — is part of this, but so is demonstrating that officers will be supported when they step in. Training signals that support and increases the likelihood that interventions will be effective — a precursor to intervention becoming the norm. While not having been trained cannot be an excuse to avoid accountability for a failure to intervene, strong training can create a culture in which effective interventions are more likely.”

“Active bystandership programs, such as the one focusing on policing that I helped found at Georgetown Law, teach people to anticipate this reaction and be prepared to overcome it. We use the acronym PACT — for probe, alert, challenge, take action — to help officers remember not only the potential need to ratchet up intervention, but also how to do so. Officers role-play escalating stages of intervention. Imagine if just one of the officers had directly challenged Chauvin (“Take your knee off his neck!”) and, if that didn’t work, taken action to physically remove him.”

“Training cannot guarantee better outcomes, but when good training is bolstered by accountability — like that possible through the trial in St. Paul — it can become a potent component of culture change. Building this culture in policing is essential, not only to prevent tragedies like Floyd’s death but also to stop the everyday violations that steadily erode police legitimacy and that other officers are often the only ones in a position to prevent.”

Conclusion

Professor Lopez’ opinion deserves serious attention. Before joining the Georgetown faculty in 2017, she served for seven years as a Deputy Chief in the Special Litigation Section of the Civil Rights Division at the U.S. Department of Justice where she led pattern-or-practice investigations of police departments and other law enforcement agencies, including litigating and negotiating settlement agreements to resolve investigative findings. Professor Lopez also helped coordinate the Department’s broader efforts to ensure constitutional policing. Before that she spent 15 years as a lawyer involved in criminal justice reform and constitutional policing. [2]

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[1] Lopez, The officers who didn’t stop Derek Chauvin are on trial. Their prosecution may matter even more than his did, Wash. Post (1/23/22).

[2] Christy E. Lopez Biography, Georgetown Law.

Postponement of State Court Trial of Ex-Policemen for Killing of George Floyd                 

On January 12, 2022, Hennepin County District Court Judge Peter Cahill postponed the commencement of the state trial of three Minneapolis ex-policemen (J. Alexander Kueng, Thomas Lane and Tou Thao) on charges of aiding and abetting the May 2020 second-degree murder and manslaughter of George Floyd. [1]

The Judge ordered the parties’ attorneys to meet before January 16 to select a new trial date between March 14, 2022 and January 9, 2023. If they cannot agree on a new date, the trial will start on March 7 as previously scheduled.

In the meantime, the three men are scheduled to go on trial in federal court starting January 20 on charges of violating Mr. Floyd’s civil rights during his arrest. If that trial has not concluded by the new date for the state trial, the latter shall be continued on a daily basis until the attorneys are available.

In addition, Judge Cahill stated that in the state case the attorneys should set aside three weeks for jury selection and five weeks for trial testimony.

All of these developments happened after the state court trial, conviction and sentencing of Derek Chauvin to 22.5 years imprisonment for second-degree and third-degree murder and second-degree manslaughter of Mr. Floyd.[2] And then in mid-December 2021 Chauvin unexpectedly pleaded guilty to the federal charges against him over the killing of Mr. Floyd with Chauvin to serve the state and federal sentences concurrently in a federal prison.[3] Thus ended Chauvin’s criminal charges and trials over Floyd’s death.

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[1] Xiong, State trial of three officers charged in George Floyd killing postponed from March date, StarTribune (Jan. 12, 2022); Order Granting Joint Request To Continue Trial Date, State v. Thao, Lane, Kueng, Henn. Cty Dist. Ct., File Nos. 27-CR-20-12949, 12951 & 12953 (Jan. 12, 2022).

[2]  See the “Derek Chauvin State Criminal Trial” and “State Court Sentencing of Derek Chauvin” sections of List of Posts to dwkcommentaries—Topical: George Floyd Killing.

[3] Derek Chauvin Pleads Guilty to Federal Criminal Charges Over Killing of George Floyd, dwkcommentaries.com (Dec. 16, 2021).

Derek Chauvin Pleads Guilty to Federal Criminal Charges Over Killing of George Floyd

On December 15, 2021, at the Minneapolis’ federal courthouse Derek Chauvin pleaded guilty to two counts of depriving George Floyd of his federally-protected civil rights by pinning his knee against Floyd’s neck and by failing to provide medical care for Floyd on May 25, 2020, ultimately causing his death.[1]

At this hearing, Chauvin also pleaded guilty to separate federal charges for holding down with his knee a 14-year-old boy in 2007 and failing to provide medical care to the boy and thereby causing non-fatal injuries.

His only comments during the hearing were short answers to questions by U.S. District Court Judge Paul Magnuson. These questions and answers undoubtedly followed the Plea Agreement and Sentencing Stipulations in his federal case over the killing of Mr. Floyd and other papers regarding pleading guilty to the 2017 mistreatment of the juvenile.

The federal court subsequently will conduct a sentencing hearing on these charges, but Chauvin and the federal prosecution have agreed that he will serve these sentences in a federal prison concurrently with his state sentence and that the federal prosecutors intends to recommend a sentence of 300 months.

Background[2]

On June 2, 2020, Chauvin in a superseding complaint was charged with these crimes under Minnesota state law regarding the killing of M. Floyd:  Second Degree Murder (Unintentional While Committing a Felony), Third Degree Murder (Perpetrating Eminently Dangerous Act and Evidencing Dangerous Mind) and Second Degree Manslaughter (Culpable Negligence Creating Unreasonable Risk).

After the district court had denied his dismissal motion, Chauvin alone went on trial, starting March 8, 2021. On April 20, 2021, the jury convicted him on all three counts: second-degree murder, third-degree murder and second-degree manslaughter.

On June 25, 2021, the court at a hearing sentenced Chauvin to 22.5 years imprisonment. At that hearing, Chauvin stated to the judge and several members of the Floyd family, “At this time due to some additional legal matters at hand, I’m not able to give a full, formal statement at this time. Briefly though, I do want to give my condolences to the Floyd family. There’s going to be some other information in the future that would be of interest, and I hope things will give you some peace of mind. Thank you.”

Observers immediately speculated, rightly so by Chauvin’s recent change of his plea to guilty, that attorneys for the prosecution and Chauvin were working on details of an agreement for a guilty plea and their negotiation of the terms of such an agreement reached fruition at the December 15th hearing.

Along the way, Chauvin has clearly indicated his preference for federal over Minnesota prisons. Perhaps that is because in state prison he is more likely to encounter fellow inmates who have had bad experiences with Minneapolis policemen, including Chauvin himself, and who as a result might have incentives to mistreat Chauvin.

Conclusion

The Chauvin guilty plea to the state charges obviously will result in the dismissal of his appeal to the Minnesota Court of Appeals.

It also leaves the other three ex-officers with the challenging decision of whether to change their pleas to guilty to the state and federal criminal charges against them and thereby eliminate the necessity of state and federal criminal trials, which might include Chauvin’s testimony against them.

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  1. Zapotosky & Bailey, Derek Chauvin signals he will plead guilty to violating George Floyd’s civil rights, Wash. Post (12/12/21); Mannix, Derek Chauvin to change plea in federal civil rights case, StarTribune (12/13/21); Plea Agreement and Sentencing Guidelines, U.S. v. Chauvin, U.S. Dist. Ct., D. MN (Case No. 21-CR-108 (PAM-TNL) Dec. 15, 2021); Mannix,  Derek Chauvin pleads guilty to civil rights charges in George Floyd’s killing, StarTribune (12/15/21); Bailey, Derek Chauvin pleads guilty to violating George Floyd’s civil rights, Wash. Post (12/15/21);Bogel-Burroughs, Derek Chauvin Pleads Guilty to Violating George Floyd’s Rights, N.Y. Times (12/15/21); Derek Chauvin pleads guilty to civil rights charges in killing of George Floyd, Guardian (12/15/2021);
  2. This blog’s many posts about the state criminal cases over the killing of Mr. Floyd are listed in List of Posts to dwkcommentaries—Topical: George Floyd Killing. This post specifically references the following posts: The Criminal Complaint Against Derek Chauvin Over the Death of George Floyd (June 12, 2020); Court of Appeals Reverses District Court’s Refusal To Follow Precedent on Third-Degree Murder Charge Against Derek Chauvin, (Mar. 5, 2021); Derek Chauvin Trial: Week One (Mar. 15, 2021); Derek Chauvin Trial: Conviction (Apr. 21, 2021); Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment (June 28, 2021).