Derek Chauvin Appeals His Conviction and Sentencing for Second-Degree Murder of George Floyd         

On September 23, 2021, Derek Chauvin initiated his appeal to the Minnesota Court of Appeals from the Hennepin County District Court ‘s June 25th Sentencing Order and Memorandum Opinion holding him guilty of second-degree murder of George Floyd and sentencing Chauvin to 22.5 years imprisonment for that crime.[1]

The document initiating this appeal was Chauvin’s Statement of the Case of Appellant.[2] It stated the following issues for the appeal:

“(1) The District Court abused its discretion when it denied Appellant’s motion for change of venue or a new trial;

(2) The District Court abused its discretion when it denied Appellant’s motion for a continuance or a new trial;

(3) The District Court abused its discretion when it denied Appellant’s motions to sequester the jury throughout trial;

(4) The State committed prejudicial prosecutorial misconduct;

(5) The District Court prejudicially erred when it concluded that the testimony of Morries Hall, or in the alternative Mr. Hall’s statements to law enforcement, did not fall under Minn. R. Evid. 804(b)(3) and was not a violation Appellant’s constitutional confrontation rights;

(6) The District Court prejudicially erred when it permitted the State to present cumulative evidence with respect to use of force;

(7) The District Court abused its discretion when it ordered the State to lead witnesses on direct examination;

(8) The District Court abused its discretion when it failed to make an official record of the numerous sidebar conferences that occurred during trials;

(9) The District Court abused its discretion when it failed to allow Appellant to exercise several cause strikes for clearly biased jurors during voir dire;

(10) The District Court abused its discretion when it permitted the State of amend its complaint to add the charge of third-degree murder;

(11) The District Court abused its discretion when it strictly limited and undercut the admissibility of George Floyd’s May 6, 2019 arrest;

(12) The District Court abused its discretion when it submitted instructions to the jury that materially misstated the law;

(13) The District Court abused its discretion when it by denying Appellant’s motion for a Schwartz hearing;

(l4) The District Court abused its discretion when it denied Appellant’s post-verdict motion for a new trial due to juror misconduct.”

These issues will be presented and argued with citations to legal precedents and the trial record in the subsequent briefs and oral arguments of the parties.

However, a practical problem for Chauvin is the inability of his trial counsel, Eric Nelson, to represent him on this appeal because the Minnesota Police and Peace Officers Association, which had paid Nelson’s attorneys’ fees for Chauvin’s pretrial and trial proceedings, does not pay such fees for appeals after conviction and Chauvin does not have the financial ability to pay for appellate counsel. As a result, on September 23, District Judge Peter Cahill entered an Order Granting In Forma Paupereris Application of Mr. Chauvin. Now Chauvin awaits the Minnesota Supreme Court’s action on his application to reverse its earlier decision denying him a public defender to represent him on this appeal.

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[1] Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment, dwkcommentaries.com (June 28, 2021); Forlitti (AP), Chauvin to appeal conviction, sentence in Floyd’s death, Wash. Post (Sept. 23, 2021); Chhith, Derek Chauvin appeals his conviction in George Floyd’s death, StarTribune (Sept. 23, 2021).

[2] Statement of the Case of Appellant, State v. Chauvin, Minnesota Court of Appeals Case No. A21-1228 (Sept. 23, 2021).

Initial Hearings in Criminal Cases for Killing George Floyd

There are now four criminal cases against former Minneapolis police officers for the killing of George Floyd, all pending in the Hennepin County District Court in Minneapolis, and all four have had their brief initial hearings.

Derek Chauvin [1]

On June 8 Chauvin made his initial appearance by a video feed from a room at the Minnesota State Prison in Oak Heights, Minnesota. The only issue was the amount of his bail,  and the hearing lasted only 15 minutes without any comments by Chauvin or his attorney, Eric Nelson.

The prosecutor, Minnesota Assistant Attorney General Matthew Frank, said that the “severity of the charges” and the strong public opinion against Chauvin made him a more likely flight risk if he were released and, therefore, requested the bail be increased from $1 million to $1.25 million. The attorney for Chauvin, Eric Nelson, did not object, and Hennepin County District Judge Jeannice Reding, increased the bail to $1.25 million without conditions and to $1.0 million with conditions.

Chauvin’s next hearing, when he is expected to enter a plea to the charges, will be on June 29.

Judge Reding was appointed to the bench in January 2006, by Governor Tim Pawlenty (Rep.) and was elected to continue in that position in 2008 and 2014. After graduating cum laude from the University of Minnesota Law School in 1990, she was an attorney in a private Minneapolis law firm for seven years, a Minnesota Administrative Law Judge for two years and a Hennepin County District Magistrate and Referee for eight years. She is a founding member and past treasurer of the Minnesota American Indian Bar Association and served as a guardian ad Litem for children of tribal members in the tribal court of the Shakopee Mdewakanton Sioux Community.

J. Alexander Kueng, Thomas Lane & Tou Thao

Each of these three officers has been charged with aiding and abetting second-degree murder and second-degree manslaughter. At their initial hearing on June 4, Hennepin County District Court Judge Paul Scoggin set bail for each at $1 million without conditions or $750,000 with conditions. [3]

The prosecutor, Minnesota Assistant Attorney General, Matthew Frank, argued for high bail amounts because the charges were “very serious” and due to intense public interest each of these defendants was a flight risk. Each of the attorneys for the defendants objected to such amounts and instead argued for bail between $50,000 and $250,000.

Lane’s attorney, Earl Grey, disputing the complaint’s allegation that Chauvin had pulled Floyd out of one of the squad cars, claimed instead that Floyd had reisited arrest, “asserted himself” and  “flew out” of the squad car. Gray also emphasized that on the day of the Floyd death Lane was only on his fourth day as a full-time officer. Therefore, Gray argued, ““What is my client supposed to do but follow what the [senior] officer says? What was [Lane] supposed to do … go up to Mr. Chauvin and grab him and throw him off?” Instead, Lane thought he was doing what was right because he twice asked Chauvin whether they should roll Floyd over. “The strength of this case,” said Gray, “is extremely weak.” As a result, Gray said he would move to dismiss the complaint for lack of evidence.

More generally, Grey said Lane previously had worked as a juvenile counselor at a few “juvenile places” in the Twin Cities and once received a community service award from Mayor Jacob Frey and Minneapolis Police Chief Arradondo for volunteering with children.

Keung’s attorney, Thomas Plunkett, made a similar argument. He said, “At all times Mr. Keung and Mr. Lane turned their attention to that 19-year veteran. [They] were trying to communicate that this situation needs to change direction.” In addition, Plunkett said that  Keung is a black man who grew up in north Minneapolis with a single mom who adopted four at-risk children from the community and that Keung has always lived within 10 miles of his childhood home, was captain of the soccer team at Patrick Henry High School, where he graduated, coached youth soccer and baseball, and volunteered to build a school in Haiti. “He turned to law enforcement because he wanted to make that community a better place,” his lawyer said.

Thao’s attorney, Robert Paule, had a different tack. He said Thao had given a statement to investigators from the Minnesota Bureau of Criminal Apprehension (BCA) and that he is not a flight risk because he has deep roots in the community. He  is a lifelong resident of the metro area, is married and has children.

Judge Scoggin was appointed to the bench in 2015 by Governor Mark Dayton (DFL) and elected to continue in that office in 2016. His J.D. was awarded cum laude in 1984 by the University of Minnesota Law School, after which he was an Assistant Hennepin County Attorney through 2014 with a stint in 2009-10 as an International Prosecutor with the European Union External Action.

Conclusion

Subsequent posts will examine the  criminal complaints against the four officers and their second hearing scheduled for June 29.

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[1] Stanley & Xiong, $1.25M bail set for Derek Chauvin at his initial appearance Monday in George Floyd’s death, StarTribune (June 8, 2020); Karnowski, Officer charged in Floyd’s death held on $1 million bail, StarTribune (June 8, 2020); Bail Set for Up to $1.25 Million for Officer Charged With Murder in George Floyd Case, N.Y. Times (June 8, 2020).

[2] Xiong, Two ex-Minneapolis police officers charged in George Floyd’s death cast blame on more senior colleague, StarTribune (June 5, 2020); Gordon & Richmond, Duty to intervene: Floyd cops spoke but didn’t step in, StarTribune (June 7, 2020); Karnowski, Officer charged in Floyd death held on $1 million bail, StarTribune (June 8, 2020); Condon & Richmond, Duty to intervene: Floyd cops spoke up but didn’t step in, StarTribune (June 7, 2020).

[3] On June 10, Lane posted cash bail of $750,000 with conditions (surrendering firearms, remaining law-abiding and making all future court appearances) and was released from jail. (Walsh, Fired Minneapolis police officer, Thomas Lane, one of 4 charged in George Floyd’s death, posts bail and leaves jail, StarTribune (June 10, 2020).)