Court Denies Prosecution’s Motion for Temporary Protective Order in George Floyd Criminal Cases    

On October 15, as anticipated, the Media Coalition filed  its opposition to the Prosecution’s Motion for a Temporary Protective Order in the George Floyd Criminal Cases. Later that same day, the Court held a hearing on that motion.

Media Coalition’s Opposition[1]

The Media Coalition’s 12-page brief “respectfully requests that the Court, consistent with its obligations under the common law, its own rules of access, the First Amendment—and, indeed, consistent . . . with its own August 7 Order and August 11 Memorandum Opinion—immediately make the motion papers that Defendant Thomas K. Lane filed on October 12, 2020, including all video exhibits, available to the press and public and that it deny the State’s motion requesting their continued sealing. The Coalition further requests that the Court deny the State’s Motion for Order Temporarily Restricting Public Access to Motions and Exhibits.”

Hearing on the Motion[2]

At a 25-minute hearing, Judge Peter Cahill denied the Prosecution’s motion, but added he would not allow audio, video or photographs to be attached to future filings by the parties. He said the video of George Floyd’s 2019 arrest in Minneapolis “shows what basically everybody already knows: Floyd was arrested on a previous occasion.” Moreover, the Judge noted that this arrest video was potentially helpful to the prosecution and that previously he had banned evidence of Floyd’s involvement in an armed robbery in Texas before he had moved to Minneapolis.

Subsequent Developments [3]

Immediately after the hearing, Jonathan Mason, an activist with 10K Foundation, interrupted attorney Earl Gray’s interview by a reporter, to protest alleged behavior by Chauvin and to accuse the attorney of “protecting a killer.” (This Foundation’s website says, “We are helping communities preserve their freedom, justice and access to the American dream.”)

Later that same afternoon, a group of about eight protesters walked around the skyway level of the Government Center. Some were yelling, “[Expletive] Derek Chauvin.” One of them, Thomas W. Moseley, a 29-year-old from Blaine, yelled. “Kill Derek Chauvin,” and he was handcuffed, searched and taken away after deputies found a black handgun and several knives on him; he was charged with possession of a dangerous weapon, a felony.

Similar heated protests directed at the defendants and their attorneys (and damage of an attorney’s vehicle). occurred after the September 11th hearing. Thereafter these protestors’ actions were cited by one of the defendants as an additional reason (protecting the safety of the defendants and their attorneys) for transferring the case out of Hennepin County. [4]

These incidents provided additional grounds for defendants’ motions to change the venue of the cases—move them from Hennepin County District Court to another state court in a different county.

Therefore, this blog must reiterate that persons who are interested in justice for George Floyd and want the murder and manslaughter trial(s) to be held in Hennepin County, where the killing occurred, must change their tactics. Such protests merely provide evidence to the defendants’ motions to have the cases transferred to another county court in the state.

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[1] Important Prosecution’s Filings in George Floyd Criminal Cases dwkcommentaries.com (Oct. 14, 2020); Media Coalition’s Opposition to State’s Motion to Restrict Access to Defendant Lane’s October 12 Filings and State’s Motion for a “Temporary” Protective Order (Oct. 15, 2020).

[2] Olson, Judge denies prosecution’s request to seal all filings in Floyd case for at least 48 hours, StarTribune (Oct. 15, 2020).

[3] Olson, n.2; Xiong, Defense Attorney in George floyd case renews call to move ex-cops’ trial after armed protester’s arrest, StarTribune (Oct. 16, 2020).

[4] See these posts and comment to dwkcommentaries.com: Results of 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 12, 2020); Additional Developments in George Floyd Criminal Cases (Oct. 4, 2020); Comment: Woman Charged for Damaging Car of Defendant’s Lawyer in George Floyd Criminal Cases (Oct. 13, 2020).

Important Prosecution Filings in George Floyd Criminal Cases

On October 12, the prosecution (the State of Minnesota) filed two important documents in the George Floyd criminal cases against four ex-Minneapolis policemen—Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thao. The first is a motion to have all motions and exhibits in the case remain under seal for two business days “to permit the parties to review . . . [them] before they are made available to the public and, if necessary, to notify the Court within two business days of their intent to oppose public disclosure.” The second is the prosecution’s memorandum in support of other evidence the State intends to offer at trial. Here is a summary of those documents.

Motion To Limit Public Access to Case Materials[1]

The prosecution’s motion to limit public access to case materials was precipitated by an October 12th motion by Earl Gray, the attorney for Defendant Thomas Lane, to include in trial evidence a video from an incident on May 6, 2019, when three other police officers were attempting to have George Floyd show his hands, stop moving around and spit out something he had put in his mouth and when Floyd cried out for his “Mama” and “Don’t shoot me, man.”

Gray in his motion for admission of this evidence apparently argued that the 2019 arrest is relevant to his client’s defense because prosecutors have presented a ‘false narrative’ by portraying Floyd as a ‘law-abiding citizen that was afraid for his life.’ Instead, Gray said, “Floyd’s behavior in the earlier arrest is ‘almost an exact replica’ of how he behaved during his fatal encounter with police a year later outside Cup Foods in south Minneapolis. . . . Floyd cried, mumbled and yelled throughout his interview with the police ,” and Gray argued that‘s how Floyd behaves under ‘the influence of a pill.’”

In response to this motion by Mr. Gray, the prosecution immediately filed the motion to have all motions and exhibits in the case remain under seal for two business days “to permit the parties to review . . . [them] before they are made available to the public and, if necessary, to notify the Court within two business days of their intent to oppose public disclosure.” If any of the parties “oppose public disclosure, the court may then request briefing and set a briefing schedule on a motion opposing public disclosure.”  In support of this motion, the prosecution cited U.S. and Minnesota Supreme Court decisions supporting such a restriction, especially where there is a risk of prejudicial pretrial publicity.

This prosecution motion is opposed by the Media Coalition, which includes the StarTribune.

On October 15, Hennepin County District Court Judge, Peter Cahill, will hold a hearing on the prosecution’s motion

Arguments for Additional Evidence[2]

On October 12th the State filed a 44-page memorandum in support of additional evidence it plans to offer at the criminal trials of Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thau.

After a short Introduction, this memorandum sets forth in 12 pages a detailed “Statement of Facts” with evidentiary citations regarding “The Events of May 25, 2020” (the day that Floyd was killed). This included the following regarding the physical restraint of Floyd on the pavement:

  • At 8:11 p.m., Kueng “and Lane handcuffed Floyd’s arms behind his back. . . From this moment on, and for all of the remaining minutes of his life, Floyd’s hands remained handcuffed.” (P.3.)
  • “At 8:19:14-45 p.m., Chauvin, Kueng, and Lane pinned Floyd to the pavement face-down.” (p. 7.)
  • At 8:23:58—8:24:00 p.m., “Floyd then said what would be his final words: ‘I can’t breathe.’ . . .He soon fell silent and lost consciousness.” (P. 9.)
  • “But even after Floyd went limp, Chauvin continued to restrain Floyd’s neck and restraining Floyd’s left hand. Kueng and Lane continued to restrain Floyd’s back and legs.” (P. 9.)
  • At 8:25:20-31 p.m., the “body camera videos appear to show that Floyd’s shallow breaths stopped.” (P. 10.)
  • At 8:25:40-8:26:00 p.m., the “officers maintained their positions—Chauvin on Floyd’s neck, Kueng on his back, Lane on his legs, and Thao standing guard.” (P. 11)
  • At 8:26:12-18 p.m., after Kueng reported he could not find a Floyd pulse and after Floyd did not respond to Chauvin’s squeezing Floyd’s fingers, “Chauvin continued to kneel on Floyd’s neck.” (P. 11.)
  • At 8:27:36-38 p.m., Chauvin “continued to press his knee into the back of Floyd’s neck.” (P. 12.)
  • At 8:27:43-50 p.m., “while emergency personnel leaned down and attempted to check Floyd’s neck for a pulse, Chauvin did not remove his knee from Floyd’s neck.” (P. 12.)
  • At 8:28:45 p.m., “when the stretcher was ready, Chauvin finally removed his knee from Floyd’s neck.” (P. 12.)
  • “All told, Floyd was pinned to the ground—with Chauvin’s knee pressing into his neck, Kueng and Lane atop his back and legs, and Thao standing watch nearby—for approximately nine minutes.” (Pp. 12-13.)

The bulk of this memorandum was the 28 pages of the “Argument” setting forth why the State’s “evidence of 18 prior incidents involving Defendants Chauvin, Kueng, and Thao” Is admissible. (Pp. 15-43.)

Conclusion

EsarlWe now wait to see what happens at the October 15th hearing and how Judge  Cahill resolves these motions. (By the way, another October 12th filing by the prosecution was a supplemental argument for enhanced sentences of these defendants.[3)

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[1] State’s Motion for Order Temporarily Restricting Public Access to Motions and Exhibits, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Oct. 12, 2000); Olson, Prosecutors seek privacy order to keep details of George Floyd’s 2019 arrest from public view, StarTribune (Oct. 13, 2020)  Gray’s motion is not available on the public website of filings in the Lane case, but the StarTribune obtained a copy since it is a member of the Media Coalition and thus a party in an ongoing dispute over what documents are public in the case. (See Gag Order in George Floyd Murder Cases, dwkcommentaries.com (July 9, 2020); Media Coalition Asks Court To Release BodyCam Footage of George Floyd Killing, dwkcommentaries.com (July 14, 2020).)

[2] State’s Memorandum of Law in Support of Other Evidence, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Oct. 12, 2020); Mannix, Prosecutor: Ex-officers pinned George Floyd for 9 &1/2 minutes, including after they could not find a pulse, StarTribune (Oct. 14, 2020). See also Revised Length of Time for Minneapolis Police Restraint of George Floyd, dwkcommentaries.com (June 18, 2020).

[3] Prosecution’s Supplemental Argument for Enhanced Sentences for Defendants in George Floyd Criminal Cases, dwkcommentaries.com (Oct. 13, 2020).

Prosecution’s Supplemental Argument for Enhanced Sentences for Defendants in George Floyd Criminal Cases

On October 12, the State of Minnesota submitted additional arguments for enhanced sentences for the four former policemen in the event they are found guilty of murder and/or manslaughter in the killing of George Floyd. [1]

Background for This Submission[2]

On August 28, the State submitted its Notice of Intent To Seek an Upward Sentencing Departure in all four of these criminal cases. It alleged that Floyd was particularly vulnerable and was treated with particular cruelty by Chauvin, that Chauvin abused his position of authority, committed the crime as part of a group of three or more offenders who actively participated in the crime and in the presence of multiple children. (Similar assertions were made in notices in the other three criminal cases.)

This notice in the Chauvin case was submitted in accordance with the U.S. Supreme Court’s decision in Blakely v. Washington, 542 U.S. 2996 (2004), which held that the defendant’s Sixth Amendment right to a jury trial can be violated any time the court imposes a sentence greater than that called for in the guidelines, even when the sentence imposed is below the maximum punishment permitted by the legislature.

This submission by the prosecution was argued at the September 11, 2020, hearing before Hennepin County District Court Judge Peter Cahill. Assistant Attorney General Matthew Frank argued that Floyd was particularly vulnerable because he was handcuffed and pinned to the ground. Judge Cahill expressed some skepticism of this point by asking whether what happens during an encounter qualifies for this purpose.

In its Notice of Intent To Offer Other Evidence of 9/10/20, the State said it intended to offer evidence of Chauvin’s eight prior instances of use of excessive force, including use of neck and upper body restraints.  In four of those, Chauvin allegedly used them “beyond the point when such force was needed under the circumstance,” an indication of his pattern, including his restraint of Floyd.

Details of Supplemental Submission

 The supplemental submission answered “yes” to two questions posed by the Court at that hearing.

  1. “Whether the particular vulnerability of the victim justifies an upward sentencing departure when the defendants are responsible for creating the victim’s vulnerability?”

Under Minnesota Sentencing Guidelines 2.D.3.b(1), “When a defendant commits a crime against a victim who was “particularly vulnerable due to . . . reduced physical or mental capacity, and the offender knew or should have known of this vulnerability,” an upward sentencing departure is permissible.”

That standard is met in the current cases because the defendants “handcuffed Floyd’s arms behind his back, pressed him chest-down into the pavement, and rendered him unconscious. As a result, Floyd was “particularly vulnerable” when Defendants committed the crime, and Defendants knew or should have known as much.”

Moreover, the Minnesota Court of Appeals in six cited cases has “upheld the application of this enhancement where the victim became “particularly vulnerable” as a result of a defendant’s actions.”

  1. Whether a defendant’s abuse of a 27-CR-20-12646 Filed in District Court State of Minnesota 10/12/2020 3:09 PM 2 position of authority supports an upward sentencing departure even if there is not a pre-existing relationship of trust between the defendant and the victim?”

The Minnesota Supreme Court and Court of Appeals in cited cases have upheld upward sentencing departure where there are “power imbalances” even when there is no pre-existing relationship between the perpetrator and the victim “so long as the defendant holds either a’a position of trust or [a] position of authority.”

Here, “as police officers in full uniform, Defendants had a ‘defined relationship’ of authority over Floyd, and were ‘in a position to dominate and control’ him. . . . That ‘position of control” ’allowed them to handcuff and restrain Floyd, and therefore to ‘manipulate the circumstances and commit the crime.’”

Reaction to This Submission

Earl Gray, Lane’s defense attorney, said the request for an upward sentencing departure is an attempt to poison the potential pool of jurors. “They first have to get a conviction,” he said. The other defense counsel had no comments or could not be reached.

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[1] Supplemental Brief in Support of Notice of Intent To Seek an Upward Sentencing Departure, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County District Court Oct. 12, 2020); Olson, Prosecutors want stiff sentences for ex-cops charged in George Floyd’s killing, StarTribune (Oct. 13, 2020).

[2] State’s Notice of Intent To Seek an Upward Sentencing Departure, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020), State’s Notice of Intent To Seek an Upward Sentencing Departure, State v. Lane, Court File No. 27-CR-20-12951 (Hennepin County District Court Aug. 28, 2020); State’s Notice of Intent To Seek an Upward Sentencing Departure, State v. Kueng, Court File No. 27-CR-20-12953(Hennepin County District Court Aug. 28, 2020); State’s Notice of Intent To Seek an Upward Sentencing Departure, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County District Court Aug. 28, 2020).  See also Preview of the 9/11/20 Hearing in George Floyd Criminal Cases, dwkcommentaries.com (Sept. 10, 2020); Results of 9/11/20 Hearing in George Floyd Criminal Cases, dwkcommentaries.com (Sept. 12, 2020).

 

Defense Attorneys Accuse Attorney General Ellison of Contempt of Court in George Floyd Cases  

On July 14 Earl Gray, the attorney for defendant Thomas Lane, and Robert Paule, the attorney for defendant Tou Thau, accused Attorney General Keith Ellison of contempt of court by his issuance of a statement announcing the appointment of four Special Assistant Attorney Generals in the case.[1] That statement, which was the subject of a prior post, merely said the following:

  • “Seasoned attorneys join AG Ellison’s team pro bono in George Floyd case”
  • “Includes former acting U.S. Solicitor General Neal Katyal, Minnesota attorneys Lola Velázquez-Aguilu, Jerry Blackwell, and Steve Schleicher”
  • “Minnesota Attorney General Keith Ellison today announced that four seasoned attorneys and trial lawyers have joined on a pro bonobasis the prosecution team he leads in the George Floyd case. This team includes attorneys from the Minnesota Attorney General’s Office and the Hennepin County Attorney’s Office.”
  • “’Out of respect for Judge Cahill’s gag order, I will say simply that I’ve put together an exceptional team with experience and expertise across many disciplines. We are united in our responsibility to pursue justice in this case,’ Attorney General Ellison said.”
  • “The attorneys joining the prosecution team, each of whom Attorney General Ellison has appointed a Special Assistant Attorney General, are:
    • “Neal Katyal, partner at the international law firm Hogan Lovells, and former acting Solicitor General and former Principal Deputy Solicitor General of the United States.
    • Lola Velázquez-Aguilu, litigation and investigation counsel for Medtronic, and former prosecutor with the U.S. Attorney’s Office for the District of Minnesota. During her tenure at the U.S. Attorney’s Office, she prosecuted complex multi-defendant, white-collar crimes, including the successful prosecution and trial of several former executives from Starkey Hearing Technologies. Until today, she served as Chairwoman of the Commission on Judicial Selection, to which position she was appointed by Governor Tim Walz.
    • Jerry Blackwell, trial lawyer and founding partner, CEO, and chairman of the Minneapolis law firm Blackwell Burke, P.A. In June 2020, he won a full, first-ever posthumous pardon for Max Mason, who was wrongly convicted of rape in connection with the infamous Duluth lynching of June 1920.
    • Steven L. Schleicher, partner at the Minneapolis law firm Maslon LLP; former prosecutor with the U.S. Attorney’s Office for the District of Minnesota, the Minnesota Attorney General’s Office, the Winona County Attorney’s Office, and U.S. Army Reserve JAG Corps. In 2016, he led the successful prosecution of the person responsible for the kidnapping and murder of Jacob Wetterling.”

According to Mr. Gray, “Ellison should be jailed along with” his spokesman John Stiles. “There is no reason to announce that these so called ‘super stars’ are joining the prosecution and that they’re doing it for free. It is an obvious statement to the public that these ‘super stars’ lawyers believe that our clients are guilty. Further proof that the news release was done to influence the public is that it was released by John Stiles, who, according to Google, is a chief strategy officer and builds reputations and brands.”

Mr. Paule merely moved the Court for an order holding “Keith Ellison, the Attorney General for Minnesota and lead prosecutor in the above-captioned case, in contempt of court and ordering sanctions as a result of his actions.”

The Court’s Gag Order[2]

The purported basis for these motions is the Court’s Gag Order of July 9, which prohibited attorneys and others working on the matter from publicly talking about  “any information, opinions, strategies, plans or potential evidence . . . either to the media or members of the general public. This includes, but is not limited to, any discovery provided to the parties, and any exhibits in the case.”

Reactions

Joseph Daly, professor emeritus at Mitchell Hamline School of Law, believes it unlikely that the judge will sanction or have Ellison and Stiles arrested. “Judges do not like to sanction lawyers unless their conduct is outrageous.” At most, Daly thought, the judge might  issue a warning or clarify his gag order.

I concur in Daly’s opinion. The Attorney General’s statement, in my judgment, did not concern the AG Office’s “opinions, strategies, plans or potential evidence” or evidentiary “discovery” or “exhibits in the case.” Yes, the statement did contain “information” relating to the case, but it was not information relating to opinions, strategies, plans or potential evidence or evidentiary discovery or exhibits in the case. Moreover, any of the parties in this or any other criminal or civil case has a right to hire new or additional attorneys and to give public notice of such developments.

In short, there is no basis in the Attorney General’s statement for the two defense attorneys’ assertion that it was intended to tell the public that these ‘super stars’ lawyers believe that our clients are guilty.’  It would be just as easy to speculate, without any foundation, that the statement was a sign that the Attorney General is worried about the strength of the criminal charges or the capabilities of the existing team of prosecution attorneys.

These motions are ridiculous and should be denied.

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[1]  Xiong, Defense attorneys in George Floyd’s death accuse AG Ellison of contempt of court, StarTribune (July 14, 2020); Minnesota Attorney General, Seasoned attorneys join AG Ellison’s team pro bono in George Floyd Case (July 13, 2020).

[2]  Gag Order in George Floyd Murder Cases, dwkcommentaries.com (July 9, 2020).

 

Judge Peter Cahill Appointed To Handle Criminal Cases Over Death of George Floyd     

On June 12, Hennepin County District Judge Peter Cahill was appointed to handle the four criminal cases against Minneapolis police officers over the death of George Floyd.[1]

Cahill was appointed to the bench in 2007 by Governor Tim Pawlenty (Rep.) and elected to continue in that position in 2008 and 2014. Known for being decisive and direct, Cahill has handled other significant criminal cases.

In 2019, he presided over the jury trial of Kenneth Lilly for shooting a school bus driver on a snowy winter day. After the jury’s guilty verdict, Cahill sentenced Lilly to seven years in prison, saying the judge accepted that the defendant was “not a monster,” but did not believe the defendant’s assertions that he feared for his life when his car was hit by the slow-moving bus and that he did not know a child was on the bus. Lilly was represented by Thomas Plunkett, who argued for a lower sentence because Lilly had Asperger’s syndrome and suffered from post-traumatic stress disorder from two attempted robberies. Plunkett now represents one of the four Minneapolis policemen (J. Alexander Kueng) in the Floyd case.[2]

Last year Cahill also presided over the case of Thomas Incantalupo, a former ice skating coach with a local skating club. As the trial for nine counts of sexual assaults with a young girl skater was set to commence in June 2019, the defendant accepted a deal for pleading guilty to two counts in exchange for a prison sentence between 12 and 30 years. Thereafter Cahill sentenced him to 24 years in prison after saying that there was “overwhelming evidence” against the defendant, that the defendant’s apologies “ring hollow” and that the defendant’s actions were “not cheating on your wife. This is a crime against a child.” That defendant was represented by attorney Earl Gray, now the attorney for policeman Thomas Lane in the Floyd case.[3]

Plunkett and Gray and the other two attorneys in the George Floyd case now have 10 days from June 12 to move to replace Cahill, but without having any say on who might be the                replacement and without having the right to move to replace the successor judge.

Before becoming a judge, Cahill was an attorney in the Hennepin County Public Defenders Office, 1984-1987, an attorney in private practice in the Twin Cities, 1987-1997 and in the Hennepin County Attorney’s office, 1997-2007, when Amy Klobuchar was the County Attorney (1999-2007).  His J.D. degree was awarded, magna cum laude, in 1984 by the University of Minnesota Law School.

Cahill will replace his fellow judges Jeannice Reding and Paul Scoggin, who presided respectively at the initial hearings in the Chauvin case and the other case involving the other three policemen.[4] Cahill’s appointment was made by Hennepin County District Judge Toddrick Barnette, who will become the first African-American Chief Judge of the court on July 1, 2020.[5]

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[1] Olson, Judge Peter Cahill to oversee cases of four officers charged in Floyd killing. StarTribune (June 12, 2020); The judge assigned in Floyd’s murder trial is a former assistant to Amy Klobuchar, N.Y. Times (June 12, 2020).

[2] Walsh & Jany, Suspected gunman arrested after school bus driver shot in apparent road-rage incident near downtown Minneapolis, StarTribune (Feb. 7, 2019); Charges filed against man who shot bus driver, (Video), StarTribune (Feb. 7, 2019); Walsh, Charges: Man claims self-defense for shooting Minneapolis school bus driver with girl aboard, StarTribune (Feb. 8, 2019); Xiong, Shooter who wounded school bus driver sentenced to 7 years in prison, StarTribune (Sept. 15, 2019).

[3]  Stahl, Ice-skating coach charged with sexually assaulting 14-year-old student, StarTribune (Jan. 11, 2018); Walsh, Twin Cities skating coach admits sexually abusing girl he instructed, StarTribune (June 19, 2019); Xiong, Minneapolis-area figure skating coach gets decades in prison for girl’s sex abuse, StarTribune (Sept. 27, 2019).

[4] Initial Hearings in Criminal Cases for Killing George Floyd, dwkcommentaries.com (June 10, 2020).

[5] Xiong. First chief judge of color elected in Hennepin County, StarTribune (May 5, 2020).