Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment           

                                                                                                                               On June 25, Hennepin County District Court Judge Peter Cahill entered the following order, “ As to Count I, based on the verdict of the jury finding you guilty of unintentional second-degree murder while committing a felony under Minn. Stat. sec. 609.19, subd. 2(1), it is the judgment of the Court that you now stand convicted of that offense. Pursuant to Minn. Stat. sec. 609.04, Counts II and III remain unadjudicated as they are lesser offenses of Count I.”

Therefore, the “Court commits . . . [Derek Chauvin] to the custody of the Commissioner of Corrections for a period of 270 months [22.5 years]. You are granted credit for 199 days already served.”[1]

With this sentence, the  Minnesota Department of Corrections has said that if Chauvin qualifies by good behavior in prison, he would be released from prison on December 10, 2035, which will be when Chauvin is 59 years old, followed by supervised parole until June 8, 2043.

Court’s Opinion Regarding This Sentence[2]

Judge Cahill first reviewed the Minnesota Sentencing Guidelines, which were promulgated “to establish rational and consistent sentencing standards the promote public safety, reduce sentencing disparity, and ensure that the sanctions imposed . . . are proportional to the severity of the . . . offense and the offender’s criminal history.”  The Guidelines also establish “presumptive ranges” for the offenses and for most cases, the maximum sentence that may be imposed is at the top of that range.

However, the Guidelines also recognize that there are cases when the guidelines may not be appropriate and that a different sentence may be imposed for “substantial and compelling circumstances,” i.e., when the “defendant’s conduct in the offense . . . was significantly more or less serious than that typically involved in the commission of the crime in question.” (Emphasis in original quotation of Minnesota Supreme Court case.)

Here, the presumptive range of a sentence for second-degree murder is 128 to 180 months with a presumptive sentence of 150 months (12.5 years). To deviate from these guidelines, the court (or jury) must find that there were one or more “aggravating factors” in the crime at issue. Here, the court determined that there were two such “aggravating factors”: Chauvin abused a position of trust and authority and Chauvin treated Mr. Floyd with particular cruelty.

Although the court previously had concluded there were two other aggravating factors–children were present during the commission of the crime and Chauvin committed the crime with the active participation of three other former Minneapolis policemen—Judge Cahill for various reasons declined to use them for determining the sentence.

Judge Cahill then sought “to effectuate the Minnesota guidelines policy of reducing sentencing disparity” by examining Minnesota sentences over that last ten years for murder in the second-degree. For all such sentences, 67% were within the presumptive guidelines range while 20% were upward departures and 13% were downward departures. Moreover, the most common aggravated sentence has been 240 months (20 years) while the average aggravated departure for defendants with a zero criminal history score [like Chauvin] was 278.2 month (23.2 years).

Therefore, the court concluded, “Mr. Chauvin, rather than pursuing the MPD mission [to give citizens ‘voice and respect’], treated Mr. Floyd without respect and denied him the dignity owed to all human beings and which he certainly would have extended to a friend or neighbor. In the Court’s view, 270 months, which amounts to an additional ten years over the presumptive 150-month sentence, is the appropriate sentence.” In other words, “In consideration of all the facts presented at trial, this Court’s experience, and the collective experience of the entire Court over the last ten years, the Court finds the appropriate prison sentence for Mr. Chauvin is 270 months.”

This opinion demonstrates Judge Cahill’s careful attention to factual and legal details. The only part that is questionable, in this blogger’s opinion, is his refusal to consider for sentencing his previous conclusion that another aggravating factors was  the presence of children. Compare his previous conclusion on this factors with his stated rationale for not considering it for sentencing:

  • Sentencing conclusion. “Although four young women were present and observed portions of the nine and a half minutes restraint of Mr. Floyd, none was injured or threatened with physical injury so long as they did not interfere; none had been present during the previous police struggle to get Mr. Floyd into a squad car, were free to leave the scene at any time, they did not know any of the officers or Mr. Floyd and at trial did not present any objective indicia of trauma.”
  • Previous conclusion. “Children were present on the sidewalk adjoining Chicago Avenue standing only a few feet from where . . . [Chauvin] and the other officers were restraining George Floyd prone in the street and observed Mr. Floyd being asphyxiated as he begged for his life.. . . Although these four children did not observe all the events, they did observe a substantial portion of the . . .[Chauvin’s] use of force and witnesses the last moments of Mr. Floyd’s life.”

This sentencing conclusion, in this blogger’s opinion, is weak in light of  the trial testimony of then 17-year-old Darnella Frazier: “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,” she said. “I have a Black father, I have Black brothers, I have Black friends. I look at them and how it could have been one of them. It’s been nights I’ve stayed up 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.” Another 17-year-old girl testified at trial,  “It was difficult because I felt like there wasn’t really anything I could do. As a bystander I was powerless there, and I was failing to do anything.”

The court’s refusal to consider for sentencing the other aggravating factor of Chauvin’s committing the crime with the assistance of others, however, was justified given the statute’s requirement for sentencing that the others be “offenders,”  which has not yet been established with their trial scheduled for this August

Sentencing Hearing[3]

At the June 25 hearing, before the Court imposed the above sentence, the Court heard victim impact statements from members of the Floyd family (seven-year-old daughter Gianna, brothers Terrance and Philonise and nephew Brandon Williams), and Chauvin’s mother (Carolyn Pawlenty).

Derek Chauvin also made the following statement. “At this time due to some additional legal matters at hand, I’m not able to give a full, formal statement at this time. Briefly though, I do want to give my condolences to the Floyd family. There’s going to be some other information in the future that would be of interest, and I hope things will give you some peace of mind. Thank you.” (Emphases added.)

No further information was provided as to what this future information will be, but the only thing this blogger can think of that would be of some comfort to the Floyd family would be an overall agreement among Chauvin and the federal and Minnesota prosecutors for Chauvin to plead guilty to all charges and to abandon any appeal from this guilty verdict and judgment in exchange for an agreed sentence to a federal detention facility.

In addition, at this hearing, Assistant Minnesota Attorney General Matthew Frank and defense attorney Erik Nelson made short statements in support of their requested sentences (30 years by the State and probation and parole by the defense).

At the conclusion of the hearing, Judge Cahill said the sentence was “not based on public opinion. I am not basing it on any attempt to send any messages. The job of a trial judge is to apply the law to specific facts.”

Court’s Order Denying Two Defendant’s Motions[4]

 On June 24 (the day before the hearing), the Court denied Chauvin’s motions for a new trial and for a Schwartz hearing to investigate the jury’s conduct during the trial.  Those denials followed from the following findings of fact and conclusions of law by the court:

  1. “Defendant has failed to demonstrate that the Court abused its discretion or committed error that Defendant was deprived of his constitutional right to a fair trial.”
  2. “Defendant has failed to demonstrate that the State engaged in prosecutorial misconduct such that Defendant was deprived of his constitutional right to a fair trial.”
  3. “Defendant has failed to establish a prima facie case of juror misconduct or that a juror gave false testimony during voir dire to warrant an evidentiary hearing pursuant to Schwarz v. Minneapolis Suburban Bus Co. . . . [and] State v. Ussee. . . .”

Commentary About the Sentencing[5]

Minnesota Attorney General Keith Ellison. Minnesota Attorney General Keith Ellison in a statement published by the Washington Post said, “Chauvin is one of the few police officers ever convicted of murder for a death on the job. Chauvin’s 22½-year sentence, announced Friday, is one of the longest any police officer in the United States has received in modern times for the death of a civilian.”

“But one exceptional case does not solve the problem. Can this conviction help us finally break the cycle of inaction once and for all?”

“It depends whether we act.”

“Prosecutors must act.”

“Prosecutors must commit to vigorous, visible and swift prosecutions of in-custody deaths when there is probable cause that the use of force was unlawful. They should not be afraid to use all the tools the law puts at their disposal. The visibility of prosecutions, to restore and build credibility with the public, is as important as the vigor employed.”

“The Justice Department must also be a partner in prosecuting cases when local prosecutions fail to win convictions — or fail to act. The Biden administration’s return to conducting investigations into biased policing patterns and practices is also welcome.”

“Prosecutions must also be swift. Chauvin was convicted less than a year after he took Floyd’s life. By contrast, it took four years from the death of Laquan McDonald for Chicago police officer Jason Van Dyke to be convicted. We cannot possibly build public trust if we allow prosecutions to take this long.”

“Lawmakers must act.”

“Congress must pass the strongest version of the George Floyd Justice in Policing Act it can pass. Don’t wait for the perfect bill when a meaningful first step is within reach. Remember: the Voting Rights Act of 1965 and the Fair Housing Act of 1968 were passed after the Civil Rights Act of 1964. Enduring, systemic change takes time.”

“At the state level, legislatures should authorize attorneys general to conduct investigations into local law enforcement to bring to light any persistent patterns of misconduct within a given police department. State-based pattern-or-practice investigations — which critically involve both community members and police officers — have proved successful. If states don’t do that, Congress should make it possible for attorneys general to rely on federal authority to conduct these investigations.”

“City councils and county boards must support reform-minded law enforcement leaders and, if necessary, use the power of the purse to compel reform by directing money toward progressive training and holding leadership accountable for outcomes. We must also recognize that, too often, we ask police officers to solve problems they are neither trained nor intended to solve. We must provide people in crisis with comprehensive social services that law enforcement cannot provide, and we must also support officer wellness.”

“Law enforcement must act.”

“Police leadership must be empowered to take meaningful action. Rather than punishing good officers who call out their colleagues’ bad behavior, as sometimes occurs, police departments should celebrate them and commend their service.”

“The Chauvin trial produced some remarkable, even astonishing, moments, with multiple police officers testifying for the prosecution, and with the police chief, in full uniform, testifying that the defendant’s behavior was not a reasonable use of force in line with department policy. Such testimony should become commonplace, not remain a rarity.”’

“This isn’t about creating a culture of ‘snitching” — it’s about creating a culture of accountability that sets and enforces clear professional standards that protect both police officers and community members.”

“Finally, communities must act.”

“It is imperative that communities keep up the pressure for reform and accountability, and finally end the cycle of inaction. My office could not have led the prosecution of Chauvin without the help of ordinary people who courageously bore witness to Floyd’s death, and the pressure from a community that demanded accountability and action.”

President Joe Biden. At the White House on June 25, President Biden responded to a reporter’s question about the sentencing with this comment: “I don’t know all the circumstances that were considered but it seems to me, under the guidelines, that seems to be appropriate.”

Washington Post Editorial. An editorial in the Washington Post said Chauvin’s conviction and sentencing “should bring a measure of satisfaction that justice was served and assure Americans that the system is not hopelessly broken.”

But more broadly , “Policing in the United States could be more effective and less threatening to minority communities. Officers who commit wrongdoings could face more certain punishments. Floyd’s death last spring appeared to spur a reckoning on U.S. policing, but that momentum has slowed in recent months.”

For example, a bipartisan criminal justice reform bill so far has failed to pass in the U.S. Congress. The House of Representatives in March passed a sweeping police reform bill, but Republican opposition in the Senate appears to doom that bill.

Experts’ Reactions. Although the Chauvin case could lead to better police hiring and training, more trust between police and communities and make the public and future jurors more reception to complaints about police interactions with minorities, this case “ doesn’t address deep-rooted issues of race and violence affecting police interactions with minorities [and does not] . . . result in charges or convictions against officers, according to Sheila A.Bedi, a professor at Northwestern University’s Pritzker School of Law, Director of its Community Justice & Civil Rights Clinic and an attorney in use-of-force lawsuits against the Chicago Police Department.

Another professor of criminal justice, Philip Stinson of Bowling Green State University, pointed out that since 2005 only 11 non-federal law officers, including Chauvin, have been convicted of murder for on-duty conduct, the nine who were sentenced before Chauvin received sentences ranging from six years to life behind bars with the median being 15 years.

Floyd Family Attorney’s Reaction. Ben Crump, the attorney for the Floyd family, called for a federal conviction of Chauvin that might lead to a longer sentence.

Conclusion

We now wait to see the results of any appeal of this conviction and sentencing by Chauvin; the results of the August trial of the other three ex-officers in state court and any subsequent appeals; developments in the federal court criminal cases against the four ex-policemen; and the details of any guilty plea agreements by any or all of the four men.[6]

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[1] Sentencing Order and Memorandum Opinion, State v. Chauvin, Hennepin County District Court, Dist. Ct. , File No. 27-CR-20-12646 (June 25, 2021); Derek Chauvin Trial:  Week Seven (Conviction), dwkcommentaries.com (April 21, 2021).

[2] Ibid; Derek Chauvin Trial: Week Four, dwkcommentaries.com (April 2, 2021). Derek Chauvin Trial: Court finds Aggravating Factors for Sentencing, dwkcommentaries.com (May 12, 2021); Derek Chauvin Trial: Arguments About Sentencing of Chauvin, dwkcommentaries.com (June 7, 2021); Derek Chauvin Trial: Issues for Sentencing, dwkcommentaries.com (June 18, 2021);

[3] Olson, Xioing & Walsh, Chauvin Sentenced to 22 ½ years for the murder of George Floyd, StarTribune (June 26, 2021).

[4] State v. Chauvin, Hennepin County District Court, Dist. Ct. File 27-CR-20-12646 (June 24, 2021); AP. Judge rejects Chauvin request for new trial in Floyd death, Wash. Post (June 25, 2021); Xiong, Former officer Derek Chauvin faces sentencing Friday afternoon; judge denies defense motion for new trial, StarTribune (June 25, 2021); Derek Chauvin Trial: Defendant’s Motion for New Trial and Impeachment of Verdict, dwkcommentaries.com (May 5 2021).

[5]  Ellison, Opinion: Derek Chauvin is going to prison. Let this be a turning point, Wash. Post (June 26, 2021); Goodnough, Biden calls long prison sentence for Derek Chauvin ‘appropriate,’ N.Y. Times (June 25, 2021); Editorial, Opinion: Derek Chauvin is headed to prison. But that is not enough, Wash. Post (June 25, 2021); Webber (AP), Experts: Impact of Chauvin case on policing yet to be seen, Wash. Post (June 26, 2021); Assoc. Press, Floyd family lawyer calls for federal conviction for Chauvin, Wash. Post (June 25, 2021).

[6] This blog has covered all of the details in these cases and intends to continue doing so. (See List of Posts to dwkcommentaries—Topical: George Floyd Killing.

Derek Chauvin Trial: Defense Motion for New Trial and Impeachment of Jury Verdict

On May 4, Defendant Derek Chauvin submitted to the trial court a motion for a new trial and impeachment of the jury verdict. These matters are summarized below.[1]

Motion for New Trial [2]

This motion is based on Minnesota Rules of Criminal Procedure 26.04, subd. 1, which provides that the trail court may grant a new trial on the issue of guilt on any of the following grounds:

“(1)The interests of justice; (2) Irregularity in the proceedings, or any order or abuse of discretion that deprived the defendant of a fair trial; (3) Prosecutorial or jury misconduct; (4) Accident or surprise that could not have been prevented by ordinary prudence; (5) Newly discovered material evidence, which with reasonable diligence could not have been found and produced at the trial; (6) Errors of law at trial, and objected to at the time unless no objection is required by these rules; or (7) A verdict or finding of guilty that is not justified by the evidence, or is contrary to law.”

In support of this motion Chauvin alleges that:

  • “(a) The court abused its discretion in denying Chauvin’s motion for a change of venue.
  • (b) The court abused its discretion in denying Chauvin’s motion for a new trial on the ground that there was adverse publicity during the trial with respect to the defense’s expert witnesses.
  • (c) The court abused its discretion in failing to sequester the jury for the duration of the trial.
  • (d) The State committed pervasive, prejudicial prosecutorial misconduct. . . . including but not limited to: disparaging the Defense; improper vouching; and failing to adequately prepare its witnesses.
  • (e) The court abused its discretion by failing to order Morries Hall to testify or, alternatively to admit into evidence Mr. Hall’s statement to law enforcement regarding his interactions with George Floyd and presence at the May 25, 2020 incident.
  • (f) The court abused its discretion by submitting instructions to the jury that failed to accurately reflect the law with respect to second-degree unintentional murder, third-degree murder, and authorized use of force.
  • (g) The court abused its discretion by permitting the State to present cumulative evidence with respect to use of force.
  • (h) The court abused its discretion by ordering the State to lead witnesses on direct examination.
  • (i) The court abused its discretion by failing to order that a record be made of the numerous sidebars that occurred during the trial.
  • (j) The cumulative effect of the court’s multiple errors deprived Chauvin of a fair trial in violation of his constitutional rights.”

Motion for Impeachment of Verdict [3]

This motion is based on the Minnesota Supreme Court’s decision in the Schwartz case and Minn. R. Crim. Pro. 26.03, subd. 20(6). and the allegations that “that the jury committed misconduct, felt threatened or intimidated, felt race-based pressure during the proceedings, and/or failed to adhere to instructions during deliberations.”

Issues Regarding Juror Brandon Mitchell [4]

Mr. Mitchell, a Black man, in his written responses to the court’s questionnaire to prospective jurors, stated he had a “very favorable” opinion of Black Lives Matter (BLM). When questioned about this response in voir dire by defense counsel Erik Nelson, Mitchell said, “Black lives just want to be treated as equals and not killed or treated in an aggressive manner simply because they’re Black” and that “Black Lives Matter” was “simply a statement of fact that he supported.”

On the questionnaire Mitchell also stated he had a neutral opinion about “Blue Lives Matter” about police officers. When questioned in voir dire by Nelson, Mitchell said he knew some police officers at his gym and that they were “great guys.”

Mitchell on the questionnaire also said  “no” to the question whether he or anyone close to him had “participated in protests about police use of force or police brutality.”

Another Mitchell statement on the questionnaire said he wanted to serve on the jury “because of all the protests and everything that has happened after the event [the Floyd killing], this is the most important case of my lifetime and I would love to be a part of it.”  Nelson, therefore,  asked, “How did the protests and things that have happened afterward have to do with  . . the facts and evidence in this case?” Mr. Mitchell responded: “Well there’s no correlation between the protest and the facts. The facts are the facts. There’s no correlation between these two things.”

Thereafter Nelson obviously did not seek to strike Mitchell as a juror.

Recently it became known via social media that Mitchell had attended a large rally on August 28, 2020, in Washington, D.C. to commemorate the 57th  anniversary of Martin Luther King’s famous “I Have a Dream” speech at the Lincoln Memorial. Some groups, including the NAACP, emphasized it was a way to recommit to King’s vision of racial equality while other groups tied ihe event to promote voter registration, police reform and justice for George Floyd.

The source of this information about Mitchell was a social media post containing a photo of him with two relatives in what appears to be a bar or restaurant the weekend of this event. He is wearing a T-shirt with an image of Dr. King, the logo “BLM” and “Get Your Knee Off Our Necks Commitment March.”

When questioned by journalists about this event, Mr. Mitchell said he attended because he had never been to Washington, D.C. and wanted to commemorate Dr. King. He also said he may have been given the t-shirt during the march, but does not specifically recall details.

Joseph Daly, a retired law professor at St. Paul’s Mitchell Hamline School of Law, thought Mr. Mitchell has been very forthright on a range of topics in his voire dire and that Nelson’s question about attending any anti-police rally was open to interpretation. Daly added, a prospective juror is “not going to confession. You just have to answer the questions you are asked.” Therefore, in Daly’s opinion, it was unlikely the court could find that Mitchell was lying on his response to that question.

Mary Moriarty, a former Chief Hennepin County Public Defender, thought Mitchell’s attendance at the event in Washington, D.C. did not make a difference. Given the evidence in the case, a court would be hard pressed to throw out the verdict. This view was shared by Melissa Murray, a law professor at New York University, who said although the attendance at the MLK event and the t-shirt were “not great, throwing out a jury verdict under these circumstances is probably a long shot.”

A similar opinion came from a New York criminal defense lawyer, Benjamin Brafman, who said, ”It’s been my experience that if you represent a really notorious individual in a trial that’s been watched by the entire world, you would have to have a really powerful confluence of legal issues for any appellate court to give it traction.”

Another Minnesota criminal defense attorney, Mike Padden, had a different view. He thought Mitchell in the voir dire should have disclosed his attendance at the MLK event and let the judge and the attorneys decide whether he should be on the jury.

Apparently the relevant legal precedent for this issue held that for a party to get a new trial, the party must show that the juror’s response on voir dire to a material question was dishonest and a correct response would have provided a valid basis for removal of the juror. (McDonough Poser Equip. v. Greenwood, 464U.S. 548 (1984).) https://www.washingtonpost.com/national/explainer-will-jurors-march-presence-impact-chauvin-case/2021/05/05/f2f70e84-addd-11eb-82c1-896aca955bb9_story.html

State’s Response to the Motions [5]

Chauvin’s four-page motion document asked for additional time to prepare and submit a thorough brief on these issues, and the State’s has not yet submit its detailed response to these motions. However, a spokesman for the Minnesota Attorney General’s Office stated, “The court has already rejected many of these arguments and the State will vigorously oppose them.”

Conclusion

The press reports about these defense motions, cited in footnote 1, contain the following opinions about the likely success of these motions .

Mike Brandt, a Minneapolis criminal defense attorney, said these requests are routine following a guilty verdict and often predict issues that will be raised on appeal, but that the convictions are unlikely to be overturned.

The previously mentioned Mary Moriarty said there wasn’t much new in the defense motion and that it lacked specificity. “You can see it’s very rushed and they actually asked for additional time to brief the issues.

It should also be noted that before or at the sentencing hearing in late June, the court has to rule on the prosecution’s pending motion for enhanced sentencing because of alleged aggravating circumstances. [6]

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

[1] Defendant’s Notice of Motions and Post-Verdict Motions, State v. Chauvin, Court File No. 27-CR-20-12646 (Henn. Cty. Dist. Ct. May 4, 2021); Walsh, Derek Chauvin files for new trial, alleging prosecutorial and judicial misconduct, StarTribune (May 4, 2021); Xiong & Walsh, Chauvin files for new trial, alleging prosecutorial misconduct and judicial errors, StarTribune (May 5, 2021); Forliti (AP), Chauvin’s lawyer seeks new trial, hearing to impeach verdict, Wash. Post (May 4, 2021); Barrett & Winter, Derek Chauvin Seeks New Trial in George Floyd Case, W.S.J. (May 4, 2021); Eligon, Derek Chauvin’s Lawyer Asks for New Trial After Jury Verdict, N.Y. Times (May 4, 2021); Bailey, Derek Chauvin’s attorney files motion for a new trial, alleging misconduct by judge, prosecution and jurors, Wash. Post (May 4, 2021); Forliti (AP), EXPLAINER: Will juror’s march presence impact Chauvin case, Wash. Post (May 5, 2021). Details about the court’s previous rulings on these issues may be found in List of Posts to dwkcommentaries—Topical: George Floyd Killing.

[2] See n.1 supra; Minn. R. Crim. Pro. 26-04, subd. 1.

[3] See n. 1 supra; Minn. R. Crim. Pro. 26.03, subd. 20(6); Schwartz v. Minneapolis Suburban Bus Co., 104 N.W.2d 301 (Minn. Sup Ct. 1960).

[4] Forliti & Glass (AP), Chauvin juror: After intense trial, verdict was ‘easy part,’ StarTribune (April 28, 2021); Xiong, Chauvin juror hopes experience will lead to change, inspire others, StarTribune (April 28, 2021); AP, Juror talks of deliberations before finding Chauvin guilty, StarTribune (April 28, 2021); Beliware, First Chauvin juror to speak publicly recounts stress of coming to court to ‘watch a Black man die,’ Wash. Post (April 28, 2021);Xiong, Juror defends participation in March on Washington after social media post surfaces, StarTribune (May 4, 2021).

[5] See n. 1 supra.

[6] Xiong & Olson, Attorneys debate ‘aggravating factors ‘ in George Floyd murder, StarTribune (April 30, 2021); Forliti (AP), Prosecutors seek higher sentence for Chauvin in Floyd death, StarTribune (April 30, 2021); Bila, Chauvin’s ‘particular cruelty’ to George Floyd should mean harsher sentence, Minnesota attorney general argues, Wash. Post (May 1, 2021); AP, Chauvin sentencing in Floyd death pushed back to June 25, Wash. Post (April 27, 2021); State’s Memorandum of Law in Support of Blakely Aggregated Sentencing Factors, State v. Chauvin Henn. County Dist. Ct. No. 27-CR-20-12646 (April 30, 2021),; Defendant’s Memorandum of Law in Opposition to Upward Durational Sentencing Departure, State v. Chauvin Henn. County Dist. Ct. No. 27-CR-20-12646 (April 30, 2021).

 

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.

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[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)..