Tag: Derek Chauvin

Witnessing

Witnessing is an important human activity and responsibility.

Sometimes witnessing is a planned activity, like attending or watching and listening to a concert, play, movie, sporting event or a church worship service and then reporting (orally or in writing) what happened to others. Witnessing sometimes, however, is not planned beforehand when you observe something happening in your presence and subsequently tell others what you had observed.

Witnessing by Darnella Frazier [1]

An important example of the latter type of witnessing was provided by Darnella Frazier, a 17-year-old high school student, in Minneapolis at the corner of Chicago Avenue and 38th Street on May 25, 2020.

By happenstance she and her nine-year-old cousin walked from their home to the nearby Cup Foods store on that corner to buy some snacks. When they arrived at the store they noticed in the street a Minneapolis police car where a black man (George Floyd) was pinned in pain on the pavement by three Minneapolis policemen. Frazier immediately got out her cell phone and started a video recording of this event and then held her camera steady for over the next ten minutes until the Black man apparently died. She then  posted this video recording on her FACEBOOK page, which immediately was seen by many people around the world.

The next day in an interview by the StarTribune Frazier said she started the video recording ”as soon as I heard  . .  [the Black man] trying to fight for his life. It was like a natural instinct, honestly. The world needed to see what I was seeing. Stuff like this happens in silence too many times.” She hoped that the video can in some way bring about “peace and equality. We are tired of [police] killing us.” It was obvious to her that the officer had “seen how weak [Floyd] was, and he still proceeded. . . . My video proves what really happened.”

Frazier amplified her remarks in March 2021 FACEBOOK postings. “George Floyd was already cuffed on the ground, a knee to the neck when [the] restraint already is absolutely unnecessary. The man was begging for his life and Chauvin did not care. He deserves to go down.” Moreover, I can’t go to sleep in silence, my mind will eat me alive.” Frazier also criticized the falsity of the Minneapolis Police Department’s initial public report of this incident that stated the following:

  • “On Monday evening, shortly after 8:00 pm, officers from the Minneapolis Police Department responded to the 3700 block of Chicago Avenue South on a report of a forgery in progress.  Officers were advised that the suspect was sitting on top of a blue car and appeared to be under the influence.”
  • “Two officers arrived and located the suspect, a male believed to be in his 40s, in his car.  He was ordered to step from his car.  After he got out, he physically resisted officers.”
  • Officers were able to get the suspect into handcuffs and noted he appeared to be suffering medical distress.”
  • “Officers called for an ambulance.  He was transported to Hennepin County Medical Center by ambulance where he died a short time later.”
  • “At no time were weapons of any type used by anyone involved in this incident.”
  • “The Minnesota Bureau of Criminal Apprehension has been called in to investigate this incident at the request of the Minneapolis Police Department.”
  • “No officers were injured in the incident.”
  • “Body worn cameras were on and activated during this incident.”

At Chauvin’s recently concluded criminal trial, Frazier was the fourth witness called by the prosecution and provided moving and emotional testimony about what she observed and did that day. “When I look at George Floyd I look at my dad, I look at my brothers, I look at my cousins, my uncles, because they are all Black. I have a Black father, I have Black brothers, I have Black friends. I look at that and how it could have been one of them. It’s been nights I’ve stayed up apologizing and apologizing to George Floyd for not doing more and not physically interacting and not saving his life. It’s not what I should have done. It’s what he [Chauvin] should have done.” She also testified that Chauvin had a “cold look—heartless. It didn’t seem like he cared.”

In cross examination, defense counsel Erik Nelson was trying to fabricate a scene with bystanders becoming increasingly hostile to the point of creating a potential threat to the officers. Frazier agreed that bystanders were getting louder and angrier, but she added that she didn’t think anyone was ever threatening Chauvin.

After the jury on April 20th rendered its verdict that Chauvin was guilty on all three counts, Frazier said on FACEBOOK, “I just cried so hard. This last hour my heart was beating so fast, I was so anxious, anxiety [busting] through the roof. But to know GUILTY ON ALL 3 CHARGES !!! THANK YOU GOD THANK YOU … George Floyd we did it!! Justice has been served.”

Courage Award for Darnella Frazier [2]

Praise for Frazier’s actions at the scene of the Floyd killing actually started in October 2020, when PEN America, which works to defend and celebrate free expression in the United States and worldwide through the advancement of literature and human rights, announced that it was granting its annual Benenson Courage Award to Frazier. The announcement stated the following:

  • “In May 2020, Frazier documented the death of George Floyd at the hands of Minneapolis police officers, one of whom—Derek Chauvin—pressed his knee against Floyd’s neck, well after Floyd lost consciousness. Frazier’s video quickly spread across social media and led to a wave of community outrage, a major investigation, and Chauvin’s arrest, as well as the dismissal of [him and] the three other officers. Floyd’s killing, along with the deaths of Breonna Taylor, Ahmaud Arbery, Tony McDade, Dion Johnson, and others, drove a wave of activism across the country crying out for racial and economic justice.”

This award was presented at a virtual ceremony on December 8, 2020, by Spike Lee, the famous Oscar-winning film director. He said, “I’m so proud of my sister. She documented the murder of George Floyd, our brother, King Floyd. And that footage reverberated around this God’s earth, and people took to the streets all over this earth. Not just the United States of America, and it wasn’t just Black people either. Everybody took to the streets. My sister, I commend you, and you deserve  . . . the PEN/Benenson Courage Award. The [important] word is courage!”

Ms. Frazier accepted the Award with these comments: “ I would like to say thank you for honoring me with this PEN/Benenson Courage Award. I never would imagine out of my whole 17 years of living that this will be me. It’s just a lot to take in, but I couldn’t say thank you enough for everything that’s been coming towards me. Thanks to Mr. Lee for presenting this, and I appreciate that. Thank you for the PEN/Benenson Courage Award.”

Then followed thank you’s for her courage from attendees, including Meryl Streep, Anita Hill and U.S. Senator Cory Booker.

Other Praises for Frazier [3]

Many others have praised Frazier for her courage and quick-thinking on May 25th.

Her recording this video was praised at a June 11, 2020, press conference by Minneapolis Police chief Medaria Arradondo, “I am thankful, absolutely, that this [police encounter] was captured in the manner it was. [In similar situations, he encouraged others,]“Record, Record, absolutely. Record, call . . . a friend. Yell out. Call 911. We need a supervisor on the scene. Absolutely, we need to know that. So the community [should[ play a vital role and did two weeks ago.”

Chauvin’s conviction brought immediate praise for Frazier. Minnesota Governor Tim Walz said, Frazier’s taking “that video, I think many folks know, is maybe the only reason that Derek Chauvin will go to prison.” The NAACP in North Carolina, the state where Floyd was born. stated “The video shot by a high school student will go down in history. Not even many of Chauvin’s police colleagues, could argue against Ms. Frazier’s film.” Oprah Winfrey tweeted, “I’m grateful to the witnesses and their testimonies. Grateful to Darnella Frazier. Grateful to every juror for seeing and acknowledging what the world saw on that tape. Thank you God for real!”

Michelle Norris, a Washington Post columnist and a Minnesota native and graduate of the University of Minnesota, states Frazier “was the witness George Floyd needed on May 25, 2020. She was the witness we all needed—the public, the police, a country still grappling with racial codes that are stitched into the fabric of our governing institutions. She is the hero of this story.”

Norris continued, “Her bravery is a reminder that we too must not look away, and not just in the most wicked moments of bias but also in the small things that grease the runway toward larger prejudice. We must not look away when we see the softer kind of oppression that masks itself in offhand comments, and jokes, and the denigration and dismissal of ‘those people.’”

“And when I say ‘we,’ I am also talking about our public servants and especially our law enforcement officers who know too well that there are those in their ranks who ‘police’ from a dark and dangerous perspective. They know that some officers are guided by prejudice and proceed from warped beliefs. Those officers debase the entire profession.”

Conclusion

 Seven other bystanders to the killing of George Floyd testified in the Chauvin trial, including Judeah Reynolds, who is Frazier’s nine-year-old cousin. As Prosecutor Jerry Blackwell said in his closing argument, all of these bystander witnesses “were a bouquet  of humanity.”[4]

All of the bystanders testimony was  applauded by two prominent journalists. For Frank Bruni, the New York times columnist, these witnesses are “tormented by their memories of Floyd’s last minutes” and Floyd’s and their sense of “helplessness” of not being able to stop what was being done to Floyd. The Chicago Tribune’s columnist, Heidi Stevens, called these bystanders “stone catchers” or people who stand up and intervene when someone’s been wrongly accused and condemned. (This phrase is based upon Jesus rebuking men who were ready to stone to death a woman caught in adultery by asking them who is without sin to cast the first stone, which prompted all the men to drop their stones and walk away and upon Bryan Stevenson of the Equal Justice Initiative coining  the phrase “stone catchers.” [4]

This reference to the Bible should remind those of religious faith of our calling to be witnesses and give testimony. This is not easy. You have to give your account of what happened and your belief as to what it means. The person has to stand and say what he or she believes about God.

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

[1] Walsh, For first time, Minneapolis teen opens up about her viral George Floyd arrest video, StarTribune (Mar. 12, 2021); Minneapolis Police Department, Man Dies After Medical Incident During Police Interaction (May 25, 2020); Paybarah, How a teenager’s video upended the police department’s initial tale, N.Y. Times (April 20, 2021); Bogel-Burroughs & Arango, Darnella Frazier, the teenager who filmed George Floyd’s arrest, testifies at the trial, N.Y. Times (Mar. 30, 2021);  Assoc. Press, [Video] ‘He Was Suffering’: Teenager Who Filmed Floyd’s Arrest Testifies at Trial, N.Y. Times (Mar. 30, 2021); Watch the replays” Day 2 testimony of witnesses Donald Williams and Darnella Frazier, StarTribune (Mar. 30, 2021); Xiong, Walsh & Olson, Teen who recorded George Floyd’s death reveals trauma, pain in testimony, StarTribune (Mar. 31, 2021); Jackson, Derek Chauvin trial shows people who film police violence later struggle with trauma, StarTribune (April 2, 2021); Derek Chauvin Trial: Week Four, dwkcommentaries.com (April 4, 2021); Knowles & Belia, Darnella Frazier, teen who filmed Floyd’s arrest, celebrates Chauvin’s guilty verdict: ‘Justice has been served,’ Wash. Post (April 21, 2021); Yan, A teen with ‘a cell phone and sheer guts’ is credited for Derek Chauvin’s murder conviction, cnn.comm (April 21, 2021); Fowler, You have the right to film police. Here’s how to do it effectively—and safely, Wash. Post (April 22, 2021).

[2] See note 1 supra. See also Walsh, Minneapolis teen ‘humbled’ to receive national Courage Award for filming George Floyd’s killing by police, StarTribune (Oct. 29, 2020); PEN America, Darnella Frazier, Dec. 8, 2020); Walsh, Minneapolis teen receives prestigious award for recording George Floyd video, StarTribune (Dec. 10, 2020).

[3] Norris, Opinion: Darnella Frazier is the hero of this story, Wash. Post (April 21, 2021). This blog has frequently commented about Bryan Stevenson’s amazing legal representation of death-row inmates and others. See also Sullivan, By bearing witness—and hitting ‘record’—17-year-old Darnella Frazier may have changed the world, Wash. Post (April 20, 2021.).

[4] The other bystander witnesses were Alyssa Funaru (17 years old), Kaylynn Gilbert (17 years old), Genevieve Hansen, Donald Williams II, Christopher Belfrey and Charles McMillian. (Derek Chauvin Trial: Week Four, dwkcommentaries.com (April 4, 2021). Bruni, Listening to Those Who Saw George Floyd Die, N.Y. Times (April 24, 2021); Stevens, ‘The world needed to see what I was seeing,’ StarTribune (April 23, 2021)..

Derek Chauvin Trial: Week One

March 8-12 marked the first week of the criminal trail of Derek Chauvin, the former Minneapolis police officer accused of second-degree murder and second-degree manslaughter for the death of George Floyd. This recap will open with the trial court’s reinstatement of the third-degree murder charge and then discuss the parties selection of 14 jurors, two of whom would be alternates. Then this recap will conclude with the March 12th announcement that the City of Minneapolis had reached an historic settlement agreement with the Floyd family over its civil claims for damages, which may have an impact on the Chauvin  and the other criminal cases against the other ex-police officers accused of aiding and abetting Chauvin’s alleged crimes.

Reinstatement of Third-Degree Murder Charge [1]

On March 11, Hennepin County District Court Judge Peter Cahill decided that the third-degree murder charge would be reinstated after the Minnesota Court of Appeals had rebuked his previous refusal to follow the majority opinion of a three-judge panel of that appellate court’s upholding the third-degree murder conviction of another former Minneapolis policeman, Mohammed Noor. 

Judge Cahill said he was “duty bound” to accept the appellate court’s ruling and its interpretation of the relevant statute as covering “single acts directed at a single person.” Moreover, “it would be an abuse of discretion not to grant the motion” to reinstate the charge.

Rachel Paulose, former U.S. Attorney for the District of Minnesota and now a professor at the University of St. Thomas Law School in Minneapolis, says the prosecution correctly asserted this charge since Chauvin threatened to harm witnesses who attempted to intervene to provide medical help to Floyd in addition to the harm to Floyd caused by the chokehold on the latter’s neck. Nevertheless, this additional charge carries the risk that the Minnesota Supreme Court in the pending case of the third-degree murder conviction of another former Minneapolis policeman, Mohammed Noor, might interpret this crime’s requirements more narrowly and enable Chauvin to escape criminal liability if this is the only charge on which he is held guilty at trial.

Minnesota Standards for Potential Jurors [2]

Minnesota Rule of Criminal Procedure 26.02, subd. 1 provides that a county’s jury list shall be “composed of persons randomly selected for a fair cross-section of qualified county residents.”

Rule 26.02, sub. 5(1) then provides 11 specified grounds for challenging a potential juror “for cause.” The most relevant one for the Chauvin trial appears to be “1. The juror’s state of mine—in reference to the case or to either party—satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the challenging party.” Subd. 5 (3) then goes on to say, “If a party objects to the challenge for cause, the court must determinate the challenge.” 

First Week of Chauvin Jury Selection [3]

In preparation for the task of selecting jurors in such a case of wide importance and publicity, the trial court earlier had submitted to potential jurors a 14-page questionnaire with questions about race, policing, martial arts and podcasts.” That court also had determined that Chauvin would have 15 preemptory challenges (8 of which were used this week); the prosecution, only 9 (five of which were used this week).

By the end of the week, seven people had been selected for this jury, five men and two women. Four are white and three are people of color: one black man in his 30’s, one biracial woman in her 20’s, one Hispanic man in his 20’s, one white woman in her 50’s, a white man in his 20’s and two white men in their 30’s. Six of them said they held “a somewhat favorable view of the Black Lives Matter  movement” although some said that view was more for its concept, not its tactics or politics. A jury consultant said “asking about Black Lives Matter and Blue Lives Matter gave lawyers a concrete way to frame conversations about otherwise uncomfortable topics.”

According to Wall Street Journal reporters, during this first week lawyers for both sides “often focused their questioning on Black Lives Matter, Blue Lives Matter and how jurors answered . . . [the court’s] questionnaire answered a questionable item about ‘defunding the Minneapolis Police Department.” This was seen by the reporters as the lawyers attempting to discern “whether potential jurors can put aside their personal opinions while evaluating evidence presented in court—though lawyers haven’t always been swayed by such pledges.”

The founder and chief organizer of Black Lives Matter Minnesota told the Wall Street Journal that he was encouraged that some of initial seven jurors held a positive view of this group while disappointed that the only black individual chosen so far was an immigrant who came to the U.S. more than a decade ago, rather than someone whose ancestors “went through slavery, Jim Crow and the Civil Rights era and who understands the history of our relationship with the police.”

Another issue arose this week over “spark of life” testimony allowed by a Minnesota statute to humanize the deceased victim. The Judge said that he would allow such witnesses to speak about how much they loved Mr. Floyd, but that if they started talking about his character,, it would “open the door’ for the defense to introduce evidence of his criminal history, which so far has been barred by the court.

As someone who only watched a few minutes of the questioning of the prospective jurors (the process of voire dire) and who saw only the questioning by Chauvin’s attorney, Eric Nelson, this blogger was impressed by his logical and conversational tone and maintenance of a straight face and thought that the prospective jurors probably would believe he was someone who deserved to be listened too during the trial. (After retiring from the practice of law, I was summoned for jury duty and was once a potential juror in a civil case who was very annoyed with the manner of one of the attorneys posing questions to the panel; I was eliminated as a juror as I expected because very few, if any, trial lawyers would want to have a lawyer as a juror.)

Settlement Between City of Minneapolis & Floyd Family [4]

On Friday, March 12, Minneapolis city officials and lawyers for the Floyd family publicly announced that they had agreed to settle the latter’s civil lawsuit for money damages with the city’s payment of $27 million.

Mayor Jacob Frey called it a milestone for the city’s future and a reflection of “a shared commitment to advancing racial justice and a sustained push for progress.” Indeed, Frey said the city would implement major policy changes in the pursuit of racial justice. The city’s coordinator, Mark Ruff, added that with cash reserves, officials were confident that this agreement would not lead to an increase of the city’s property taxes.

Ben Crump, the lead lawyer for the family said it would set an example for other communities: “After the eyes of the world rested on Minneapolis in its darkest hour, now the city can be a beacon of hope and light and change for cities across America and across the globe.” Crump also said that this settlement “sends a powerful message that Black lives do matter and police brutality against people of color must end.” the family had pledged to donate $500,000 of the settlement to “lift up” the neighborhood around the site of the killing of Mr. Floyd. And Floyd’s brother pledged to use some of the money to help other struggling Black communities.

Some commentators thought this agreement might make it even harder to seat an impartial jury. A former city chief public defender thought the timing of this agreement “could hardly be worse” for the criminal case against Chauvin and his lawyers might even ask for a mistrial if potential or already chosen jurors saw the agreement as the city’s acknowledgment that his actions were inappropriate.

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

[1] Paulose, Opinion: The third-degree murder charges against Derek Chauvin carry worthwhile risks, Wash. Post (Mar. 12, 2021); Bogel-Burroughs, Derek Chauvin will now face a third-degree murder charge, N.Y. Times (Mar. 11, 2021); Court of Appeals Reverses District Court’s Refusal To Follow Precedent on third-Degree Murder Charge Against Derek Chauvin, dwkcommentaries.com (Mar. 5, 2021).  Derek Chauvin again charged with third-degree murder, StarTribune (Mar.  11, 2021); Bailey, Derek Chauvin trial judge reinstates third-degree murder charge in the death of George Floyd, Wash. Post (Mar. 11, 2021)

[2] Minn. Rules of Criminal Procedure 26.02, subdivisions 1, 2(3), 5(1), 5(3);Court’s Questionnaire for Prospective Jurors in George Floyd Criminal Cases, dwkcommentaries.com (Dec. 23, 2020).

[3] Dewan & Arango, What Are the Question for Potential Jurors in the Derek Chauvin Trial?, N.Y. Times (Mar. 7 & 11, 2021);  Levinson, Jury selection begins in Derek Chauvin’s trial in the death of George Floyd. Here’s what to expect, CNN.com (Mar. 11, 2021); Xiong & Walsh, StarTribune (Mar. 12, 2021); Bailey, Hints of strategy and new revelations in first week of Derek Chauvin murder trial, Wash. Post (Mar. 15, 2021).

[4] Bogel-Burroughs & Eligon, George Floyd’s Family Settles Suit Against Minneapolis for $27 Million, N.Y. Times (Mar. 12, 2021); Bailey & Olorunnipa, George Floyd’s family to receive recored $27 million in settlement approved by Minneapolis city council, Wash. Post (Mar. 12, 2021); Barrett & Winter,George Floyd Family Reaches $27 Million Settlement with Minneapolis, W.S.J. (Mar. 12, 2021). Here are summaries of the federal civil complaint by the Floyd family against the City of Minneapolis from dwkcommentaries.com: George Floyd’s Family Sues City of Minneapolis and Four Ex-Officers Involved in His Death (July 16, 2020); George Floyd Family’s Complaint Against City of Minneapolis Over His Death: Count II (July 18, 2020); George Floyd Family’s Complaint Against City of Minneapolis Over His Death: Count III (July 19, 2020).

Court’s Questionnaire for Prospective Jurors in George Floyd Criminal Cases

On December 22, the Hennepin County District Court published its 14-page Special Juror Questionnaire for the joint trial of the four former Minneapolis policemen involved in the George Floyd killing on May 25th.[1]

The Questionnaire starts with an instruction to “answer all of the questions as completely and honestly as you can” and if “some of your past experiences would be particularly sensitive, traumatic, or embarrassing” mark them PRIVATE , and the judge will consider them “as privately as possible.”

“PART I. KNOWLEDGE OF THE CASE”

The first question is, “What do you know about this case from media reports?” That is followed by eight more questions about the Floyd case and Floyd demonstrations. Questions 2 and 3 ask about “general impressions of the defendants” and Floyd with six options (“Very negative, Somewhat negative, Neutral, Somewhat positive, Very positive, Other”). Each of these two questions is followed by “Why do you feel that way?”

Question 4 asks “Do you, or someone close to you, have any direct or indirect connections with these events?” and “If yes, please explain.”

Question 5 asks “Have you ever watched video of George Floyd’s death on the news or the internet?” And “If yes,” provide more details.

Question 6 asks “Have you ever talked about George Floyd’s death with your family, friends, co-workers, or discussed it online, for example, on social media? If yes, what opinions have you expressed?”

Question 7 asks “Did you, or someone close to you, participate in any of the demonstrations or marches against police brutality that took place in Minneapolis after George Floyd’s death?” If Yes, “explain how much you were involved,” and “ if you participated, did you carry a sign? And “What did it say?”

Question 8 asks “Did you or someone you know get injured or suffer any property damage during the protests that took place after George Floyd’s death?”

Question 9 asks “Do you believe your community has been negatively or positively affected by any of the protests that have taken place in the Twin Cities area since George Floyd’s death?”

Question 10 asks whether “you can put aside [whatever you have heard about the case or your prior opinions} and decide this case only on the evidence you receive in court, follow the law, and decide the case in a fair and impartial manner?”

“Part II. MEDIT HABITS”

This Part asks eight questions about the prospective juror’s sources of news.

“Part III. POLICE CONTACTS”

This Part asks 14 questions regarding the prospective juror’s contacts with the police and whether the individual “supported or advocated in favor of or against police reform” (Q 3); the individual’s “honest opinion” on various issues about the police (Q. 9); whether the individual “had . .. ever been trained on how to restrain someone or use a chokehold” (Q. 10); whether the individual had “any martial arts training or experience” (Q. 11); whether the individual “or anyone close to you, participated in protests about police use of force or police brutality (Q. 12); “How favorable or unfavorable you are about Black Lives Matter” and explain your response (Q. 13); “How favorable or unfavorable are you about Blue Lives Matter?” and explain your response (Q. 14).

“PART V. PERSONAL BACKGROUND”

This Part has 18 questions, the first 11 of which are fairly basic.

Question 12 asks whether the individual or anyone close to you, has “any training or experience (work or volunteer}” in the following areas: Law; Law enforcement; Criminal justice or criminology; Forensic science; Medicine or health care; Counseling, Psychology or Mental Health; and “Civil Rights or Social Justice Issues.”

Question 13 asks whether the individual or anyone close to you has had any of these experiences: “Victim of Crime, Accused of a Crime, Struggle with Drug Addiction” and Question 14 asks whether any of such experiences would “make it difficult for you to be fair and impartial” and “Why.”

Question 15 asks the individual whether you have had any of these court experiences: “served on a jury in a criminal case, served on a jury in a civil case, testified as a witness in a court case, served on a grand jury, worked for the judicial branch.” Question 16 asks whether any of such experiences would “make it difficult for you to be fair and impartial“ in this case?” And if so, “why?”

Question 17 asks for a list of “any hobbies or special interests you have.”

Question 18 asks for identification of all “organizations you have belonged to or in which you participate as an active volunteer or financial supporter.”

“PART V. OPINIONS REGARDING JUSTICE SYSTEM”

1. “Do you believe that the jury system in this country is a fair system? Why or why not?”

2. “Do your believe that our criminal justice system works? Why or why not?”

3. “Would you have any difficulty following this principle of law, under our system of justice?”

• “defendants are presumed innocent of the criminal charges against them.” (Para. 3.)
• “the prosecution has the burden of proving the defendant guilty beyond a reasonable doubt.” (Para. 4.)
• “defendants have the right to remain silent, and if they exercise this right, their silence is not to be used against them.” (Para. 5)
• “the potential consequences of your verdict, including potential penalty or punishment, must not in any way affect the jury’s decision as to whether or not the prosecution has proven the defendant guilty beyond a reasonable doubt.” (Para. 6.)
• “the jury must decide the case solely on the evidence produced in court and the law that the judge instructs, and not because of bias, passion, prejudice, or sympathy.” (Para. 7.)

“PART VI. TRIAL LENGTH AND ABILITY TO SERVE”

1. “The best prediction is that jury selection will last from March 8, 2021 to March 26, 2021. You will have to appear at the Hennepin County Government Center for 1-2 days in that timeframe . . . If you are selected for the jury in this case, you will have to appear every weekday starting March 29, 2021 until trial and deliberations are finished (estimated to be three to four weeks). Is there any significant hardship or reason why you cannot serve during this time period.”
2. “During jury deliberation (And possible for part of the trial), the jury will be sequestered. That means the jury will work into the evenings and taken to a hotel to stay overnight. Is there any reason why you cannot be sequestered overnight?”
3. “Secure parking will be provided for jurors, free of charge. Are you able to drive yourself, or have someone drop you off each day?”
4. “How difficult do you think it will be for you to evaluate graphic photographs or video, including photos and video of a person who has died?”
5. “The jury is told not to read, watch, or listen to news accounts of a trial they are involved in until it is over, and not to talk to anyone,about the case, not even to one another, and to not post anything on social media or elsewhere, including through jury deliberations. Would you find it difficult to follow these instructions for any reasons?”
6. “Is there any reason why you would not be able to give your complete attention to a trial during your time as a juror?
7. “Do you have any religious or philosophical beliefs, which would make it difficult for you to be a juror?”
8. “Do you have any medical, visual, hearing, physical, or other impairment that may affect your ability to serve as a juror on this case?”
9. “Is there any other reason that you could not be a fair and impartial juror in this case? If yes, Please explain.”
10. “Is there anything else the judge and attorneys should know about you in relation to serving on this jury?”
11. “Do you want to serve as a juror in this case? {Yes. No. Not sure.]”
12. “Why do you feel that way about serving as a juror in this case?”

Prior Court Comments About Jury Issues

At the September 11th hearing, the Judge said, “it would be almost cruel to keep . . . [jurors] in on weeks at a time. Instead, he suggested they be “semi-sequestered.” Jurors [will] drive to court each day for deputies to escort them from their vehicles to a secure elevator, have their lunches brought in to the jury room and then have them escorted back to their vehicles. The Judge also said he anticipates jury selection will take two weeks with each prospective juror to take the witness stand for questioning by the attorneys.

At the November5th hearing, the Judge issued the Court’s Order for Juror Anonymity and Sequestration and said there are “strong reasons to believe that threats to jurors’ safety and impartiality exist“ in these cases and that “all reasonable means should be taken to insulate the jury from such ex parte contacts.” Therefore, the Court ordered the “jurors’ names, addresses and other identifying information . .. [to] . . .be kept confidential by the Court and all parties throughout the trial and deliberation” After the conclusion of the trial, any information about the jurors shall be disclosed only after a “subsequent written Order” by the Court.

The Judge added that the jurors will be partially sequestered during trial with possible full sequestration if the partial plan “proves ineffective in keeping jurors free from outside influence.” In addition, during jury deliberations at the end of the trial, there shall be full sequestration

Conclusion

Although the Court did not specially call for comments on this Questionnaire by the attorneys in this case, they clearly have the right to object to any of these proposed instructions or to suggest other instructions. However, this set appears to cover all of the points.

Nor did the Judge indicate when this Questionnaire would be sent to prospective jurors or when their responses would have to be sumitted to the Court.(The listing of this item on the Court’s website, however, states it was “mailed to prospective jurors summonsed.”)

It is interesting that the Judge expects that the trial of the four consolidated cases will start on the previously established date of March 8, 2021 (only 87 days after today, including Christmas and New Year’s Day holidays), that jury selection will take three weeks (March 8-26) and that the trial will take three to four weeks (March 29 to April 16 or 23). Those appear to be optimistic to this bystander.

How would you like to be a prospective or actual juror in this case?

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

[1] Special Juror Questionnaire [blank],State v. Chauvin, Dist. Ct. File 27-CR-20-12646 (Dec. 22, 2020),
https://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12646/JurorQuestionnaire12222020.pdf;

Bailey, Potential Jurors in George Floyd Case asked if they support defunding the police, amid concerns about ‘fair and safe’ trial, Wash. Post (Dec. 22, 2020),https://www.washingtonpost.com/national/george-floyd-trial-jury-selection/2020/12/22/a49ae422-44a6-11eb-a277-49a6d1f9dff1_story.html.

[2] Results of 9/11/20 Hearing in George Floyd Criminal Cases, dwkcommentaries.com (Sept. 12, 2020), https://dwkcommentaries.com/2020/09/12/results-of-9-11-20-hearing-in-george-floyd-criminal-cases;

Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing, dwkcommentaries.com (Nov. 5, 2020), https://dwkcommentaries.com/2020/11/05/courts-orders-regarding-criminal-trial-of-defendants-in-george-floyd-killing;

Order for Juror Anonymity and Sequestration, State V. Chauvin, Court File No. 27-CR-20-12646, Hennepin County District Court (Nov. 5, 2020).

Court Affirms Livestreaming of George Floyd Criminal Trial  

On November 5, Hennepin County District Court Judge Peter Cahill ordered that the joint criminal trial of the four defendants—Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thao–subject to the conditions contained in the order, including livestreaming. Thereafter the State objected to livestreaming while it was supported by the Media Coalition. [1]

On December 18, the Judge affirmed its original order for such coverage of the trial and denied the State’s motion to reconsider that order. [2]

The latest order conceded that the Court’s allowing audio and video coverage exceeds that allowed by Minn. Gen. R. Prac 4.02(d), but pointed out that another provision of these rules (1.02) ‘provides that ‘[a] judge may modify the application of [the General Rules of Practice] in any case to prevent manifest injustice.’

The Court concluded this latest order with this statement.  “[T]he State’s suggested procedures to accommodate the Defendants’ Sixth Amendment rights [to a public trial] and the public’s and press’ First Amendment rights to a public trial would be, at best, inadequate, and at worst, mere lip-service to the Defendants’ and the public’s constitutional rights.” (P. 7.)

Conclusion

With this order and the previous order denying the motions for sanctions against the State for alleged deficiencies in discovery, the only pending motions awaiting decision are (i)  Lane’s motion to reconsider joinder of the four defendants for one trial; (ii) the  State’s objection to evidence of Floyd’s prior incident with the Minneapolis police; and (iii) Chauvin and Lane’s objections to the State’s intent to offer evidence of prior incidents involving Chauvin’s alleged use of excessive force.[3]

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

[1] Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing, dwkcommentaries.com (Nov. 5, 2020)(order for livestreaming); Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases, dwkcommentaries.com (Nov. 18, 2020)(includes State’s objection to livestreaming); Recent Developments in George Floyd Criminal Cases, dwkcommentaries.com(Dec. 12, 2020)(summary of State’s arguments against livestreaming); George Floyd Cases: Media for Livestream; Chauvin Criticizes State’s Disclosures, dwkcommentaries.com (Dec. 15, 2020).

[2] Order Denying Motions To Reconsider and Amend Order Allowing Audio and Video Coverage of Trial, State v. Chauvin, Dist. Ct. File 27-CR-20-12646 (Dec. 18, 2020); Sawyer, Judge upholds decision to livestream trial of officers in George Floyd killing, StarTribune (Dec. 18, 2020).

[3] Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases, dwkcommentaries.com (Nov. 18, 2020).

George Floyd Cases: Media for Livestream; Chauvin Criticizes State’s Disclosures

In the George Floyd criminal cases, as previously reported, the State has moved for cancelling the livestreaming of the upcoming trial of the four ex-Minneapolis policemen, and Defendant Tou Thao has requested a delay in the trial and sanctions against the State for alleged misconduct in disclosing evidence.[1]

Now Defendant Derek Chauvin adds his voice to criticism of the State’s evidence disclosures and to requesting postponement of the trial. And the Media Coalition along with three of the defendants reiterate their support for the livestreaming of the trial.

Chauvin’s Motion for Continuance[2]

On December 14th Defendant Derek Chauvin moved for a continuance of the trial from March 8th to a date to be established by the Court and of the deadline for him to make initial expert witness disclosures and for the Court to enter “any further relief the court deems just.”

These requests stem from the State’s alleged failure to provide timely discovery disclosures and to have done so in a disorganized and confusing manner, including hiding important documents in unimportant and duplicative materials.

These problems have “caused the defense to spend significant time, material and financial resources to simply organize the materials into a coherent case file,” which will be provided to expert witnesses for the defense. This is especially important for Chauvin because “the global profile of this case has also contributed to the delay in retaining experts willing or able to participate.”

This request was similar to the December 11th motion by Defendant Thao to delay the trial from March 8 to July 5 and for sanctions against the prosecution for its alleged delay in sharing important evidence with the defense.

Media Coalition’s Supports Trial’s Livestreaming[3]

On December 14, the Media Coalition opposed the State’s request for reconsideration of the Court’s previous order allowing audio and video livestreaming of the trial. The Coalition opened this brief with the assertion that “never before, in the history of this country, has there been a criminal trial like the one scheduled in these cases. While there have been big, important cases, few, if any, gave rise to social justice movements the size of what George Floyd inspired. None of them, meanwhile, went to trial at a time when a deadly pandemic had the country in its clutches and when—simultaneously—the country had in its own clutches the technology to livestream a trial around the world.”

According to the Coalition, the Court’s November 4 Order “allowing livestreaming of the trial with certain conditions is a reasonable and appropriate response to these challenging circumstances. Moreover, “Defendants, who have a Sixth Amendment right to a public trial, do not challenge this approach. “

According to the Coalition, the State’s motion for reconsideration of this solution “cites no clash of constitutional principles. . . . Instead, it expresses vague and speculative concerns regarding witnesses’ perceived reluctance to testify if they know cameras are present.” The State relies on Minn. R. Gen. Prac. 4.02, but “in adopting Rule 4.02 as a pilot program in 2015, the Minnesota Supreme Court made clear that ‘[t]he media’s right to be present at public court proceedings as a representative of the public is not at issue here.’”  For the George Floyd cases,  “strict adherence to that rule would violate the First Amendment, which guarantees not just a theoretical right of access but an actual, meaningful right of access.”

Therefore, says the Media Coalition, the Court should deny the State’s motion for reconsideration. this position was supported by Defendants Derrek Chauvin, J. Alexander Kueng and Tou Thao.

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

[1] See these posts to dwkcommentaries.com: More Details on 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 11. 2020); Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing (Nov. 5, 2020); Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases (Nov. 18, 2020); Recent Developments in George Floyd Criminal Cases (Dec. 12, 2020).

[2]  Defendant’s Notice of Motion and Motion for Continuance, State v. Chauvin,  Court file No. 27-CR-20-12648 (Hennepin County District Court Dec. 14, 2020); Affidavit of Eric J. Nelson, State v. Chauvin,  Court file No. 27-CR-20-12648 (Hennepin County District Court Dec. 14, 2020); Xiong, Defense attorney in George Floyd case says prosecutors shared disorganized, duplicate evidence, StarTribune (Dec. 14, 2020); Bailey, Former Minneapolis Police Officers in George Floyd killing seek trial delay, Wash. Post (Dec. 14, 2020).

[3]  Xiong, Media coalition pushes back on George Floyd prosecution, asks to livestream trial, StarTribune Dec. 14, 2020); Media Coalition’s Opposition to State’s Motion for Reconsideration of Order Allowing Audio and Video Coverage of Trial, State v. Chauvin, Court File  No. 27-CR-20-12648 (Hennepin County District Court Dec. 14, 2020); Defendant’s Memorandum of Law Opposing the State’s Motion for Reconsideration, State v. Chauvin, Court File No. 27-CR-20-12648 (Hennepin County District Court Dec. 14, 2020); Defendant’s Reply to the State’s Motion To Reconsider Cameras in the Courtroom, State v. Kueng, Court File No.: 27-CR-20-12953 (Hennepin County District Court Dec. 14, 2020); Defense Objection to State’s Motion for Reconsideration, State v. Thao, Court File No. 27-CR-20-12949 Hennepin County District Court Dec. 14, 2020).

 

 

Recent Developments in George Floyd Criminal Cases

Since the filing of criminal charges against four former Minneapolis police officers over the May 25th death of George Floyd there have been many submissions to the court, pretrial hearings and court orders that have been summarized in previous posts.[1]  Now we look at the developments in the cases since November 18.

Kueng’s Supplemental Offer of Proof Regarding Floyd’s 5/6/19 Incident [2]

On November 23, Defendant Kueng submitted records of his attorney’s interviews of four other police officers involved in the May 6, 2019 Minneapolis arrest of Mr. Floyd as an offer of proof to admit evidence of that arrest at trial.

State’s Disclosure of Expert Witnesses [3]

 On November 24, the State of Minnesota disclosed the following potential expert witnesses and reports:

  • Michael Berkow;
  • John J. Ryan,
  • William Louis Manion, M.D.
  • Glenn G. Hardin, MPH, DABFT
  • William Louis Manion, M.D.,
  • S. Charles Schulz, II,
  • Michael M. Baden, M.D.,
  • Theodore C. Chan, M.D.,
  • Sellman Charles Schulz, II, M.D.,
  • Lawson F. Bernstein, Jr., M.D.,
  • Joshua O. Zimmerman,
  • Andrew M. Baker, M.D.,
  • Theodore Chan,
  • Michael M. Baden, M.D.

State’s Arguments Against Livestreaming of Trial [4]

On November 25, the State moved for reconsideration of the order for audio and video coverage of the trial. It made the following points:

  • “The Minnesota General Rules of Practice . . . permit audio or visual recordings of criminal trials, but only if the State and Defendants have consented ‘in writing” or “on the record prior’ to trial.” But at least the State had not so consented.
  • “Moreover, even when the parties consent, the Rules prohibit video and audio recordings of ‘any witness who objects thereto in writing or on the record before testifying.’”
  • Neither the U.S. nor the Minnesota Constitution “requires such recordings.” And the “Sixth Amendment’s core purpose—transparency—can readily be achieved with overflow rooms and closed-circuit cameras. “
  • “[R]ecording and publicly broadcasting witness testimony without consent will cause witnesses to lose their privacy and suffer possible threats of intimidation, and may make it less likely that some witnesses will come forward and testify at trial. “

Defendant Thao Asks for Trial Delay & Sanctions on Prosecution [5]

 On December 11, Defendant Tou Thao’s attorney filed a motion to delay the trial from March 8 to July 5 and for sanctions against the prosecution for its alleged delay in sharing important evidence with the defense.

The motion asserted that the Court’s order of June 30 required the prosecution to share all evidence by August 14, but the prosecution has delayed sharing more than 15,000 pages of evidence over eight separate instances. Most significant was the prosecution’s not providing until October 28 an account of a July 8 interview of Hennepin County Chief Medical Examiner Andrew Baker.. The defense attorney also asked the Court to order the State to pay for the defense attorney’s fees and costs caused by the delays and postpone the defense’s deadline to disclose their expert witnesses.

Dr. Andrew Baker in that July 8 interview described “the mechanism of death as Floyd’s heart and lungs stopping due to the combined effects of his health problems as well as the exertion and restraint involved in Floyd’s interaction with police prior to being on the ground.”  (Emphasis in the brief.)

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

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

[2]  Defendant’s Supplemental Offer of Proof in Support of Motion To Admit Floyd’s May 6, 2019 Incident, State v. Kueng, Court File No. 27-CR-20-12933 (Hennepin County District Court Nov. 23, 2020).

[3] Supplemental Prosecution Disclosure Pursuant to Rule 9.01, Subd. 1, State v. Chauvin, Court File No. 27-CR-20-12646 (Nov. 24. 2020).

[4] State’s Motion for Reconsideration of Order Allowing Audio and Video Coverage of Trial, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County District Court Nov. 25, 2020);  Xiong, Prosecutors challenge judge’s order allowing livestreamng of George Floyd trial, arguing it could harm testimony, StarTribune (Nov. 30, 3030).

[5] Motion for Sanctions and Hearing Regarding Discovery Violations by the State, State v. Thao, Court File No 27-CR-20-12949 (Hennepin County District Court Dec. 11, 2020); Exhibit 1 to said motion (FBI Memo of Interview of Andrew Baker, MD (09/01/20)); Exhibit 2 to said Motion (Letter, Aug. 7, 2020, Office of Hennepin County Attorney to Assistant U.S. Attorney Jeffrey Paulsen); Defense attorney: Prosecutors in George Floyd case should be sanctioned for delaying sharing evidence, StarTribune (Dec. 11, 2020).

State Court Rejects Chauvin Divorce Settlement

As previously reported, only days after the May 25th killing of George Floyd, Kellie Chauvin filed an action for divorce from her husband, Derek Chauvin, who was a Minneapolis police officer and principal actor involved in that killing. This divorce case was filed in the Minnesota state court in Washington County, where they lived. [1]

In that divorce case it was revealed that the two Chauvins had an agreement whereby Kellie would receive all the equity in their homes in Minnesota and Florida, all of their funds in their bank and investment accounts, and all of Derek’s pension and retirememt accounts except for the non-marital portion of two accounts.[2]

On October 26, the Minnesota state court judge in that divorce case, District Court Judge Juanita Freeman, issued an order stating that the “court has a duty to ensure that marriage dissolution agreements are fair and equitable” and that “one badge of fraud is a party’s transfer of substantially all of his or her assets.” The court, therefore, ruled that their divorce settlement agreement was unenforceable and directed them to submit for the court’s consideration a revised agreement with a balance sheet showing all their assets and liabilities. If there is no revised agreement or if such a revision is not approved by the court, then Judge  Freeman would try and decide the case.

A Minnesota divorce attorney who is not involved in this case said, “This is just speculation, but it’s possible that the [agreement] was intentionally drafted to get assets out of Chauvin’s name in anticipation of a civil judgment against him from the estate of George Floyd.”

Indeed, in July, the attorneys  for the Floyd family filed a civil wrongful death action against Derek Chauvin and the other three police officers involved in the killing, and the lead attorney for the family, Benjamin Crump, said they they would seek “a precedent that makes it financially prohibitive for police to wrongfully kill marginalized people.”[3]

Also before the same state court are charges that the Chauvin couple engaged in tax fraud by failing to submit Minnesota income tax returns for several years and under reported their income.[4]

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

[1] Developments in Criminal Cases Over Death of George Floyd, dwkcommentaries.com (June 28, 2020); Derek Chauvin’s Wife’s Divorce Petition Raises Questions, dwkcommentaries.com (July 8, 2020

[2] Xiong, Judge rejects proposed Derek Chauvin divorce agreement, citing possible fraud, StarTribune (Nov. 20, 2020); Semenov, Proposed divorce agreement between Chauvin and wife rejected for possible fraud, FOX9 News (Nov. 20, 2020).

[3] Floyd’s Family Sues City of Minneapolis and Four Ex-Officers Involved in George Floyd’s Death, dwkcommentaries.com (July 16, 2020); George Floyd Family’s Complaint Against Four Ex-Police Officers Involved in George Floyd’s Death, dwkcommentaries.com (July 17, 2020).

[4] Chauvin and Wife Now Charged with Minnesota Tax Crimes, dwkcommentaries.com (July 22, 2020); Derek Chauvin makes first court appearance on tax fraud charges, Fox9 News (Sept. 8, 2020).

Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases

On November 5, the Hennepin County District Court issued five significant orders regarding the joint criminal trial of Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thao over the killing of George Floyd. These orders (1) granted the State’s motion for a joint trial of the four defendants; (2) preliminarily denied the defendants’ motions for change of venue; (3) provided for  juror anonymity and sequestration; (4) allowed audio and video coverage of the trial; and (5) narrowed its previous order regarding four members of the Hennepin County Attorney’s Office’s participation in the cases.[1]

On November 16, various motions and briefs were submitted objecting to the recent orders for a joint trial and allowing audio and video coverage of the trial as well as the pending motions for allowance of evidence of prior incidents of the four defendants and of Mr. Floyd. The most significant of these papers, in this blogger’s judgment, was Thomas Lane’s motion for reconsideration of the order for a joint trial of the four defendants, which, therefore, will be discussed first.

Lane’s Motion To Reconsider Joinder for Trial[2]

Lane argued that the order for joinder is premature as it does not consider the prejudice that will be caused by admission of evidence of prior incidents involving the other three defendants, none of which involved Lane.

Most significantly, Lane asserted that his  defense will be antagonistic to Chauvin in that he will be “pointing the finger” at Chauvin and that if Lane had known of Chauvin’s prior incidents, Lane would have acted differently. (Emphasis added.) (This is believed to be the first time that any of the defendants has pointed the finger at Chauvin, the principal actor in the death of Floyd.)

Moreover, said Lane’s attorney, the Court’s opinion regarding aiding and abetting liability was erroneous since it was inconsistent with a 2014 opinion of the U.S. Supreme Court, which, among other things, said such liability requires the defendant to have “advance knowledge that a crime is being committed.” (Emphasis added.)[3]

Finally, according to Lane’s attorney, a recently disclosed FBI report about its July 8th interview of Hennepin County Medical Examiner, Dr. Andrew Baker, contains significant points helpful to Lane and the other defendants.. Here are this blogger’s extracts of that report with emphasis on the points helpful to the defendants.

  • Baker’s office’s press release about its examination of Floyd’s body apparently mentioned ”cardiopulmonary arrest,” which “for a lay person would be the stopping of the heart and lungs. Other factors that contributed to Floyd’s cardiopulmonary arrest included hypertension, the presence of fentanyl and methamphetamine, as well as arteriosclerotic heart disease.”(P. 038777) (Emphasis added.)
  • “The term ‘complicating’ in the case title was a medical term meaning occurring after, during, or as a result of.” (P. 03877)
  • “Baker defined the mechanism of death as Floyd’s heart and lungs stopping due to the combined effects of his health problems as well as the exertion involved in Floyd’s interaction with police prior to being on the groun” (Pp. 038777-78.) (Emphasis added.)
  • “There was no evidence that Floyd’s airway was literally blocked shut. When viewing the body camera footage, the pressure did not appear to be directly over Floyd’s airway. Floyd would have been unable to speak if pressure was directly over his airway.” (P. 03778.) (Emphasis added.)
  • “Officer Chauvin’s positioning on Floyd’s body does not fit anatomically with occluding Floyd’s airway.” (P. 038778.) (Emphasis added.)
  • “There was no anatomic evidence of injury to Floyd’s neck but that does not rule out that pressure was applied by Chauvin.” (P. 038778.) (Emphasis added.)
  • “The absence of petechiae weighs against strangulation.” (P. 038778.) (Emphasis added.)
  • “Baker noted that that Floyd had no injury to . . .[his lower buttocks or upper end of Floyd’s thigh which were being held by Kueng].” (P. 038778) (Emphasis added.)
  • Baker noted that there was no relation to Floyd’s cause of death by Lane’s position [on Floyd’s feet].” (P. 038778.) (Emphasis added.)
  • “The struggle between officers and Floyd weighed into Baker’s opinion because physical exertion increases heart rate, releases adrenaline, and increases respiratory rate as well as cardiac demand. All of these things increased the likelihood of a bad outcome.” (P. 038778.)
  • “Baker had no opinion on when Floyd became critical or near death.” (P. 038780.) (Emphasis added.)
  • “Baker did not believe that the prone position was any more dangerous than other positions based on an article or journal he had read. “ (P. 038780.) (Emphasis added.)
  • “Baker could not provide an answer on a ‘but for’ cause [of death]. (P. 038781.) (Emphasis added.)
  • “Absent suspicious circumstances, if Floyd had been found dead in his bed with the level of fentanyl in his blood that was present for this autopsy, it may be classified aa fentanyl fatality due to the level of fentanyl.” (P. 039781.) (Emphasis added.)
  • “When a death was labeled a homicide, it was not a legal ruling being made. The label was classified as such for public health reasons.” (P. 0388782.) (Emphasis added.)

Parties’ Battle Over Evidence of Defendants’ Prior Incidents[4]

 The State previously had argued for admission of evidence of eight separate incidents involving Chauvin’s actions in the course of his duties as a Minneapolis Police Officer. On November 16 the State submitted a supplemental argument in support of such evidence in light of its obtaining the body worn camera videos for one of those incidents that are relevant to show modus operandi, intent and lack of mistake and rebut any defense of reasonable use of force and that their probative value outweighs any potential unfair prejudice.

Lane’s objection to such evidence was just discussed.

In addition,  Chauvin’s attorney argued that these incidents are inadmissible to show his intent in the Floyd case or his alleged knowledge of the need to move Floyd from the prone position or a common scheme or plan or modus operandi and that evidence of such incidents is cumulative and unfairly prejudicial.

State’s Objection to Evidence of  Floyd’s Prior Incident with Minneapolis Police[5]

All Defendants intend to offer evidence of George Floyd’s May 6, 2019, incident with the Minneapolis Police Department even though the Court at the September 11, 2020, hearing held that such evidence was inadmissible. The State said the Court’s prior decision was correct and that the defendants intend to offer this evidence at trial was for the improper purpose of attacking Floyd’s character and suggesting he had a propensity to commit crimes or should be punished for his prior actions; that the prior incident does not show Floyd’s common scheme or plan in the incident that led to his death; that his state of mind in the prior incident is irrelevant; that the unfair prejudice of evidence of that prior incident far outweighs its probative value and that the defendants’ other arguments for such evidence are unpersuasive.

State’s Objection to Audio and Video Trial Coverage[6]

The State asked the Court for reconsideration of its order for audio and video coverage of the trial. The motion provided no reasons for that motion other than its previous objection to such coverage under Minnesota Rule of Criminal Procedure 4.02(d) and a brief to be filed on or before November 30.

A StarTribune editorial, however, supported this court order. It said, “It is in the best interest of trial participants and the public for this high-profile trial to be as accessible as possible. . . . [Judge] Cahill’s ruling is well-reasoned and fair.”

Reactions

An important reason for the Court’s November 5th order for a joint trial of the four defendants was there was no indication at that stage of the proceedings “that any of the Defendants is likely to be prejudiced by joinder because their defenses are not antagonistic but instead are mutually supportive.” Now, however, Defendant Lane has stated that his  defense will be antagonistic to Chauvin in that Lane will be “pointing the finger” at Chauvin and that if Lane had known of Chauvin’s prior incidents, Lane would have acted differently. This latest statement, therefore, is a serious challenge to the wisdom of a joint trial.

In addition, Lane’s disclosure of the FBI memorandum of its interview of the Hennepin County Medical Examiner, assuming it accurately reflects what the Examiner said, provides boosters for the defense and problems for the prosecution.

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

[1] Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing, dwkcommentaries.com (Nov. 5, 2020).

[2]  Defendant’s [Lane’s] Objection to the State’s Spreigl Notice and Motion to Reconsider the Court’s Order for Joinder, State v. Lane, Court File No. 27-CR-20-12951 (Nov. 16, 2020); Exhibit A [FBI Memorandum], Lane Objection to Spreigl and Motion to Reconsider Joinder Order,  State v. Lane, Court File No. 27-CR-20-12951 (Nov. 16, 2020).

[3]  This case was Rosemond v. United States, 572 U.S. 64 (2014), which requires close analysis.

[4]  State’s Supplemental Memorandum of Law in Support of Other Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020); Defendant’s [Chauvin’s] Objection to State’s Proposed Introduction of Spreigl Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020); Defendant’s [Kueng’s]Objection to the State’s 404(b) Evidence, State v. Kueng, Court File No. 27-CR-20-12953 Nov. 16, 2020); Defendant’s [Thao’s] Memorandum in Opposition to State’s Motion for Spreigl Evidence Against Mr. Thao, State v. Thao, Court File No. 27-CR-20-12949 Nov. 16, 2020); Defendant’s [Lane’s] Objection to the State’s Spreigl Notice and Motion to Reconsider the Court’s Order for Joinder, State v. Lane, Court File No. 27-CR-20-12951 (Nov. 16, 2020); Jany, Seeking to show pattern of excessive force by Chauvin, prosecutors cite incident with 14-year-old boy who couldn’t breathe, StarTribune (Nov. 17, 2020);Bailey, Former Minneapolis police officer charged in George Floyd’s death seeks to bar evidence of past neck and body restraints, Wash. Post (Nov. 17, 2020).

[5] State’s Response Opposing Defendants’ Motions To Admit Spreigl Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020).

[6] State’s Motion for Reconsideration, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020) State asks judge to reconsider permission for audio, video coverage of officers’ trial in George Floyd Killing, StarTribune (Nov. 16, 2020); Editorial, A victory for courtroom access in George Floyd case, StarTribune (Nov. 17, 2020).

Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing

On November 5, Hennepin County District Court Judge Peter Cahill issued five significant orders relating to the trial in the criminal cases against the four former Minneapolis policemen involved in the killing of George Floyd: Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thao. [1]

These orders (1) granted the State’s motion for a joint trial of the four defendants; 2) preliminarily denied the defendants’ motions for change of venue; (3) provided for  juror anonymity and sequestration; (4) allowed audio and video coverage of the trial; and (5) narrowed its previous order regarding four members of the Hennepin County Attorney’s Office’s participation in the cases.

These five orders will be reviewed below.

                  Joint Trial of the Four Defendants[2]

The 51-page Order and Memorandum Opinion sets forth the Factual Background and then Discussion of the four-factor test for joinder established by the Minnesota Rules of Criminal Procedure and Minnesota case law. The following is the Court’s Summary of that detailed discussion (pp. 4-5).

“The first factor weighs strongly in favor of joinder because of the similarity of the charges and evidence against all four Defendants.” Indeed, “the critical evidence at trial”—body-cam videos of three of the defendants and cell-phone video of a bystander; Minneapolis Police Department Policies and Procedures and Training Manuals; autopsy reports and medical and forensic testimony about the circumstances and causes of Floyd’s death; and eyewitness testimony—”will be the same for all four Defendants.”

“The second factor slightly favors joinder in view of the impact of conducting four separate trials . . . would have on eyewitnesses if . .. [they] were forced to relive the events of May 25, 2020, by testifying to the same events at multiple trials,” especially since one of these witnesses is a minor.

“The third factor also strongly favors joinder because there is no indication at this stage of the proceedings that any of the Defendants is likely to be prejudiced by joinder because their defenses are not antagonistic but instead are mutually supportive.”

The “fourth factor also strongly favors joinder because conducting four separate trials arising from the same underlying incident and involving the same evidence and the same witnesses would result in unwarranted delay and impose unnecessary burdens on the State, the court, and the witnesses. Moreover, in wake of the unprecedented . . . scope of the publicity [about these cases] . . . if trials were to proceed separately for each Defendant, trial-related publicity surrounding the first trial (and succeeding trials) could potentially compound the difficulty of selecting a fair and impartial jury in all subsequent trials. Thus, the interests of justice also warrant joinder.”

Preliminary Denial of Change of Venue[3]

 The Court considered two factors in preliminarily deny the Defendants’ motions to change venue and transfer the case from Hennepin County to another district court in Minnesota: prejudicial publicity and safety concerns of the defendants and their attorneys.

With respect to the first factor, the Court took “judicial notice that the death of George Floyd has generated thousands of articles, reports and commentary in Minnesota, the entire United States, and internationally.” (n. 10.) As a result, “no corner of the State of Minnesota has been shielded from pretrial publicity regarding the death of George Floyd. Because of that pervasive media coverage, a change of venue is unlikely to cure the taint of potentially prejudicial pretrial publicity. Nevertheless, this is only a preliminary ruling and the parties are free to present the evidence from public opinion surveys they are presently conducting. In addition, this Court is planning to issue jury summons earlier than usual and to require summoned jurors to fill out questionnaires well before trial to gauge their knowledge of the case and any potential bias.”

The second factor—safety concerns—calls for “better safety planning,” which is currently being conducted by the Hennepin County Sheriff’s Office and the Court. The safety concerns regarding the 9/11/20 hearing at the smaller Hennepin County Family Justice Center with limited entrances and exits suggests it is more difficult to enhance security at such facilities, which would be true if the cases were transferred to a smaller county. Having the trial at the Hennepin county Government Center would facilitate tighter control of floor access and movement. In short, the “Court believes that safety issues can be mitigated to the point that a fair and safe trial may be had in Hennepin County and a jury can be insulated from outside influence and remain impartial.”

Juror Anonymity and Sequestration[4]

After reviewing the extensive publicity about the death of Mr. Floyd and these cases and related protest and unsolicited ex parte communications to the Court and counsel, there are “strong reasons to believe that threats to jurors’ safety and impartiality exist“ in these cases and that “all reasonable means should be taken to insulate the jury from such ex parte contacts.

Therefore, the Court ordered the “jurors’ names, addresses and other identifying information . .. [to] . . .be kept confidential  by the Court and all parties throughout the trial and deliberation” After the conclusion of the trial, any information about the jurors shall be disclosed only after a “subsequent written Order” by the Court.

Each Defendant shall have five preemptory challenges of prospective jurors, and the State twelve such challenges. There will be four alternate jurors.

The jurors will be partially sequestered during trial with possible full sequestration if the partial plan “proves ineffective in keeping jurors free from outside influence.” In addition, during jury deliberations at the end of the trial, there shall be full sequestration.

Audio and Video Coverage of the Trial [5]

 The trial shall commence on March 8, 2021, and “may be recorded, broadcast, and livestreamed in audio and video subject to the conditions” contained in the order.

Order Regarding Hennepin County Attorneys[6]

The Court’s oral order removing four members of the Hennepin County Attorney’s Office from these cases is vacated although they may not “appear as advocates in the trials and may not sign any motions or pleadings in these cases.

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

[1] Olson, Ex-officers charged in George Floyd case to be tried together in Hennepin County, cameras allowed in courtroom, StarTribune (Oct. 5, 2020).

[2] Order and Memorandum Opinion Granting State’s Motion for Trial Joinder, State v. Chauvin, Court File No. 27-CR-20-12646, Hennepin County District Court (Nov. 5, 2020).

[3] Preliminary Order Regarding Change of Venue, State v. Chauvin, Court File No. 27-CR-20-12646, Hennepin County District Court (Nov. 5, 2020).

[4] Order for Juror Anonymity and Sequestration, State v. Chauvin, Court File No. 27-CR-20-12646, Hennepin County District Court (Nov. 5, 2020).

[5] Order Allowing Audio and Video Coverage of Trial, State v. Chauvin, Court File No. 27-CR-20-12646, Hennepin County District Court (Nov. 5, 2020).

[6] Order, State v. Chauvin, Court File No. 27-CR-20-12646, Hennepin County District Court (Nov. 5, 2020).

Court Sustains Most Charges in George Floyd Criminal Cases  

On October 21, Hennepin County District Court Judge Peter Cahill, with one exception, denied the four defendants’ motions to dismiss all criminal charges for alleged lack of probable cause in the George Floyd criminal cases. The exception was the charge of third-degree murder against Derek Chauvin, which was dismissed. These orders and the reasons for same are contained in the Court’s 107-page Order and Opinion on the four defendants’’ motions to dismiss for lack of probable cause.[1]

In so doing, the Court properly stressed that under Minnesota law its evaluation of  these dismissal motions is “to assess whether the State has come forward with sufficient admissible evidence on each element of the charges . . .to warrant binding each of the Defendants over for trial . . . to accept as true all the allegations made by the State in its Statements of Probable Cause . . . [and to] draw in the State’s favor all inferences that may reasonably be drawn from those facts.” (Pp. 7-8.)

Here, we will review the main points in the court’s sustaining the charges of second-degree unintentional murder and second-degree manslaughter against Derek Chauvin and the charges against the other three defendants (Thomas Lane, J. Alexander Kueng and Tou Thau) for aiding and abetting these charges. Discussion of the dismissal of the third-degree murder charge against Chauvin will be left to the newspaper articles that are cited below.

Finding Probable Cause for Charge of Second-Degree Murder Against Chauvin

 Under the above standard for evaluating such dismissal motions, the court concluded that there was probable cause that the prosecution had established probable cause for the following requirements for this crime: (i) Floyd died; (ii) “Chauvin’s conduct was a substantial causal factor in Floyd’s death;” (iii) “Chauvin intentionally inflicted or attempted to inflict bodily harm on Floyd or intended to cause Floyd to fear immediate bodily harm or death;: and (iv) “Chauvin inflicted substantial bodily harm on Floyd.” (Pp. 35-53.)

In the process of reaching these conclusions, the Court said: (i) “Chauvin never relented and never lessened the pressure of his knee against Floyd’s neck even when Floyd pleaded: ‘I can’t breathe. Please, your knew in my neck’’” (p. 39); and (ii) “Notwithstanding Floyd having gone silent and motionless, the mounting evidence of his lost consciousness, the plaintiff cries and demands from the bystanders, and the obvious reality that Floyd was no longer resisting or non-compliant, Chauvin’s demeanor never changed, and he continued kneeling on Floyd’s neck applying constant pressure to pin Floyd’s face to the pavement for an additional two and a half minutes” (p. 41).

These statements followed  the Court’s “Factual Background,” which stated, in part, the following:

  • “The Critical Nine Plus Minutes between 8:19:18 and 8:28:42 P.M.: Floyd Is Subdued and Restrained Prone in the Street, with Chauvin Kneeling on the Back of Floyd’s Neck, Pinning His Face to the Street, Kueng and Lane Restraining and Pinning Floyd’s Back and Legs to the Street, and Thao Maintaining Bystander Watch.” (p. 22).
  • “Floyd uttered his final words ‘Please,’ at 8:23:55 p.m., and ‘I can’t breathe,’at 8:23:59 p.m.. . . Floyd then fell silent.”  (p. 25.)
  • “Even after Floyd ceased talking and moving and went limp, Defendants maintained their positions.” (p. 25)
  • “As Floyd lost consciousness and shortly before uttering his final words, Lane asked Chauvin and Kueng: ‘Should we roll him on his side?’ Citing concern ‘about the exited delirium or whatever . . .[and] Chauvin rejected Lane’s suggestion, stating that the ambulance was en route.” (p. 25)
  • “Neither Lane nor Kueng did anything to challenge Chauvin’s answer. Instead, they remained in the same position and continued to hold down Floyd’s back and legs.” (p. 25)
  • “After hearing the bystanders’ pleas to check Floyd for a pulse [8:25:40-8-8:26:05 p.m.], Lane asked Kueng if he could detect a pulse. After checking Floyd’s wrist for about ten seconds, Kueng reported: ‘I can’t find one [a pulse].[8:25:45-8:26:00].” (p. 27.)
  • “Kueng continued to check Floyd for a pulse. About ten seconds later, Kueng sighed, leaned back slightly, and repeated: ‘I can’t find one.” [8:26:07-12.] (p. 27.)
  • “[8:26:12-18] Upon learning that Keung could not find a pulse, Chauvin squeezed Floyd’s fingers. Floyd did not respond.” (p. 27/)
  • “Even though Floyd remained unresponsive, the Defendants did not move from their positions. They continued to restrain Floyd—Chauvin with his left knee pressed firmly into Floyd’s neck, Kueng kneeling on Floyd’s back, and Lane holding Floyd’s legs—while Thao kept bystanders back on the sidewalk. They also ignored the off-duty firefighter’s urgent demands that they check Floyd for a pulse and begin chest compressions if he had no pulse. . . None of the Defendants ever attempted PR while Floyd was on the ground.” (pp. 27-28)
  • “At 8:27 p.m., an ambulance arrived on the scene. . . . Still, Chauvin, Kueng, Lane, and Thao did not move from their positions. . . . Indeed, even as Lane explained to emergency personnel that Floyd was ‘not responsive right now,’ Chauvin kept his knee on Floyd’s neck (8:27:36-38).” (p. 28)
  • “[F]or more than a minute after the emergency personnel arrived, Chauvin continued to press Floyd face-down into the pavement, Lane knelt over Floyd’s legs, and Thao continued to push back the crowd.” (p. 28)
  • At 8:28:42 p.m., when the stretcher was ready, Chauvin finally stood up, removing his knee from Floyd’s neck. . . .Floyd remained unresponsive.” (p. 28)
  • “In total, Floyd was subdued, pinned face-down in the street—with Chauvin’s knee pressing into his neck and Kueng and Lane restraining his back and legs—for more than nine minutes and twenty seconds.(8:19:18-8:28:42 p.m.) For over four minutes and forty seconds, Floyd did not speak. (8:24:00-8:28:42) For almost three and a half minutes, Floyd appeared not to be breathing. (8:25:15-8:28:42 p.m.) And for more than two and a half minutes, the Defendants were unable to locate a pulse. (8:25:10-8:28:42). Yet over that entire time period, Defendants remained in the same positions: Chauvin continued to kneel with his left knee pressed firmly down on Floyd’s neck pinning Floyd’s face into the street, Kueng and Lane remained atop Floyd’s back and legs, and Thao continued to prevent the crowd of concerned citizens from interceding.” (p. 29)

Finding Probable Cause for Charge of Aiding and Abetting Second-Degree Murder Against Other Defendants

 Under the previously cited standard for evaluating such dismissal motions, the court concluded “the evidence the State relies upon is sufficient for probable cause purposes for the State’s charges that Thao, Lane and Kueng each independently aided and abetted Floyd’s second-degree unintentional murder by Chauvin.” (p. 79.)

The previously discussed evidence supports a potential jury conclusion “that Lane knew Chauvin was intentionally committing an assault that inflicted substantial bodily harm on Floyd”  and that “Lane  intended to aid Chauvin in the assault on Floyd.” (Pp. 79-91.) The same was true for Kueng (pp 91-94) and Thao (pp. 94-99).

Additional comments on Thao were required because “at no point was he involved in the efforts to physically restrain Floyd. Rather, his role was primarily to maintain watch over the growing crowd of bystanders.”  (Pp. 94-99.) But “a jury could conclude, on the basis of the evidence, that Thao knew that Chauvin was intentionally inflicting substantial bodily harm on Floyd” and that Chauvin’s continuing to kneel on Floyd’s neck for minutes after he had ceased talking, moving, or breathing and knowing that Kueng had not been able to detect a pulse was contrary to MPD policy and could not be a considered a justifiable use of reasonable force.” Moreover, under Minnesota cases, “Active participation in the overt act that constitutes the substantive offense—here, the assault—is not a requirement for aiding and abetting liability” and that “’the lookout’ . . ‘is a classic example’ of an ‘aider and abetter.’”

Finding Probable Cause for Charge of Second-Degree Manslaughter Against Chauvin

 Under the previously cited standard for evaluating such dismissal motions, the court concluded there was sufficient evidence for a jury to conclude that Floyd died and that Chauvin caused that death “by culpable negligence, whereby Chauvin created an unreasonable risk and consciously took a chance of causing death or great bodily harm.” (Pp. 67- 75.)

Finding Probable Cause for Charge of Aiding and Abetting Second-Degree Manslaughter Against Other Defendants

Under the previously cited standard for evaluating such dismissal motions, the court concluded that there was probable cause for the charge of aiding and abetting second-degree manslaughter because there was sufficient evidence for (i) Chauvin’s causing Floyd’s death by culpable negligence, whereby he created and unreasonable risk and consciously took a chance of causing death or great bodily harm; (ii) the other three defendants “knew Chauvin by his culpable negligence, created an unreasonable risk and consciously took a chance of causing death or great bodily harm; “ and (iii) the other three defendants “intended that . . .[their] presence or actions aided Chauvin’s commission of that crime.” (Pp.  99-107)

Conclusion

To this retired lawyer bystander, this Order and Memorandum is exceptionally well reasoned, documented and written. Moreover, I think it implicitly signals that the Judge will deny the defense motions to change venue (unless the demonstrations and protests get further out-of-line) and grant the prosecution’s motion for a joint trial of the four cases. An implicit or explicit consideration for Judge Cahill’s deciding the change of venue motions by the four defendants would have to be not wanting to impose the immense burden that would be placed on another district court in the state in taking on this complex case in which so much already has happened.

If I were representing one of these defendants, I would be very worried about my chances for success at trial.

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

[1] Order and Memorandum Opinion on Defense Motions To Dismiss for Lack of Probable Cause, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County District Court (Oct. 21, 2020); Xiong, Ex-Minneapolis police charged in George Floyd’s killing will go to trial; one count against Derek Chauvin dropped, judge rules, StarTribune (Oct. 22, 2020); Assoc. Press, Judge Dismisses a Third-Degree Murder Charge in George Floyd’s Death, W.S.J. (Oct. 22, 2020); Ismay, Judge Dismisses Third-Degree Murder Charge in George Floyd Case, N.Y. Times (Oct. 22, 2020);  Bailey, Judge dismisses third-degree murder charge against officer in George Floyd’s death: upholds more serious charge, Wash. Post (Oct. 22, 2020).