Federal Criminal Charges Against Ex-Minneapolis Policemen Over George Floyd Killing     

On May 7, the federal court in Minneapolis unsealed a federal grand jury indictment of four ex-Minneapolis policeman—Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thau—for allegedly using the “color of the law” to deprive  George Floyd of his constitutional rights to be “free from the use of unreasonable force” when Chauvin held Floyd down by the neck for more than nine minutes while the others did nothing to stop Chauvin. In addition, all four are charged with failing to help provide medical care to Floyd and “thereby acting with deliberate indifference eot a substantial risk of harm.” [1]

The latter three defendants, who are out on bail and scheduled for an August trial on the state charges,, appeared May 7  via Zoom before U.S. District Court Judge  Paul A. Magnuson. Chauvin, however, who is in a state prison as a result of his conviction in state court on charges of second and third degree murder and second degree manslaughter, apparently will appear separately via Zoom on the new federal charges.[2]

The federal statute authorizing the case against Chauvin carries a possible sentence of life in prison or the death penalty because Floyd died during the commission of the alleged offenses, but it is not yet known what penalty federal prosecutors would seek.

This indictment also charges Chauvin with two separate counts alleging he willfully deprived a 14-year-old Minneapolis boy of his civil rights during a 2017 arrest. Chauvin pinned the teenager down and struck him on the head with his flashlight, then grabbed him by the throat and hit him again, according to court documents.

Reactions to this Case

Minnesota Attorney General Keith Ellison commented on these new federal charges, “”The federal government has a responsibility to protect the civil rights of every American and to pursue justice to the fullest extent of federal law.”  federal prosecution for the violation of George Floyd’s civil rights is entirely appropriate, particularly now that Derek Chauvin has been convicted of murder under Minnesota law for the death of George Floyd. The State is planning to present our case against the other three defendants to another jury in Hennepin County later this summer.”

The attorney for the Floyd family, Benjamin Crump, also commented as follows, “Today’s federal indictment for criminal civil rights violations associated with the murder of George Floyd reinforces the strength and wisdom of the United States Constitution. The Constitution claims to be committed to life, liberty, and justice, and we are seeing this realized in the justice George Floyd continues to receive. … We are encouraged by these charges and eager to see continued justice in this historic case that will impact Black citizens and all Americans for generations to come.”

Also supporting these new charges were Al Sharpton and Derrick Johnson:

  • Sharpton, a longtime civil rights figure who eulogized Floyd at his funeral last year and has been a visible supporter of the family, said this new case “shows we have a Justice Department that deals with police criminality and does not excuse it nor allow police to act as though as what they do is acceptable behavior in the line of duty. . . . This is a significant development for those of us who have been engaged in the struggle and police reform movement.”
  • Johnson, National President of the NAACP, called the indictments a “step in the right direction,” but said the case highlights the need for police reforms, including implementing a national registry of police misconduct data.” While Derek Chauvin murdered George Floyd over 9 minutes and 29 seconds, no other police officer on the scene acted to save his life, The horrifying actions and inactions of all four police officers resulted in the preventable death of a loving father, son and brother. No police officer is above the law, nor should they ever be shielded from accountability. We need urgent reforms now.”

The Minneapolis Police and Peace Officers Association, which is providing legal representation for the four officers in their state cases, said it will be doing the same in federal court with the same attorneys.

This criminal case is unrelated to the recent U.S. Department of Justice investigation of the Minneapolis Police Department and to pending developments in the state criminal case against Chauvin—the prosecution’s request for enhanced sentencing of Chauvin, his sentencing hearing this June, his request for a new trial and his anticipated appeal—and the scheduled state court trial of the other three defendants in August. [3]

 

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

[1] Indictment, U.S. v. Chauvin, Thao, Kueng and Lane, U.S. Dist. of Minn. (Case 0:21-cr-00108-PAM-TNL (May 6, 2021), https://int.nyt.com/data/documenttools/george-floyd-killing-civil-rights-charges/a0453a1c7b14ce33/full.pdf; Mannix, 4 ex-Minneapolis cops indicted on civil rights charges in George Floyd death, StarTribune (May 7, 2021); Nakamura, Justice Dept. charges ex-Minneapolis police officers with violating George Floyd’s civil rights, Wash. Post (May 7, 2021); Benner, Four former Minneapolis police officers are indicted on charges of violating George Floyd’s civil rights, N.Y. Times (May 7, 2021); Gurman & Barrett, Federal Grand Jury Indicts Former Minneapolis Police Officers in George Floyd Killing, W.S.J. (May 7, 2021).

[2] See Derek Chauvin Trial: Week Seven (Conviction), dwkcommentaries.com (April 21, 2021).

[3] See these posts to dwkcommentaries.com: Department of Justice Starts Investigation of Minneapolis Police Department (April 22, 2021); Derek Chauvin Trial: Defense Motion for New Trial and Impeachment of Jury Verdict (May 6, 2021);Update on Status of Trial Dates in George Floyd Criminal Cases (Feb. 4, 2021).

 

 

 

 

 

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.

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

[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 Three

The first two weeks of this trial focused on selecting 13 jurors for the criminal trial of former Minneapolis policeman Derek Chauvin on charges of second-degree murder and second-degree manslaughter for the May 2020 killing of George Floyd and on Judge Cahill’s reinstatement of a third-degree murder charge. Time was also spent reacting to the surprise March12th announcement by the City of Minneapolis of its $27 million settlement of the federal court civil case for money damages by the Floyd family and to the resulting defense motions to postpone the Chauvin criminal trial and move it to another Minnesota state court, which Judge Peter Cahill denied on March 19th. [1]

The focus of this third week was the selection of three additional jurors to bring the total to 15, only 14 of whom will be chosen to sit as 12 jurors and 2 alternates on March 29 for the attorneys’ opening statements.

Additional Jury Selection [2]

On Monday one additional juror was added, a female social worker in her 20’s who said many of her clients cope with mental health issues and that this professional experience helps her to be empathetic and keep an open mind about people. Judge Cahill stated he wanted one more to bring the total to 15, one of whom would be dismissed on March 29th before opening statements.

On Tuesday the final juror was selected: a white man in his 20’s who is an accountant. He said this profession bolsters his analytical bent. He has neutral opinion of George Floyd. He wishes athletes would not kneel during the playing of our National Anthem even though he understands they are protesting racial injustice, but wishes they would find other ways to express those opinions. “Honoring the National Anthem shows “respect of those who have come before us and the system we have in U.S. I have a great sense of pride in being a U.S. citizen.”

This brings the total to 15. A multi-race woman in her 20s, a multi-race woman in her 40s, two Black men in their 30s, a Black man in his 40s, a Black woman in her 60s, four white women in their 50s, a white woman in her 40s, a white man in his 30s, two white man in their 20s, and a white woman in her 20s. 

Assuming all of them show up at 9:00 a.m. next Monday, the Judge will dismiss the 15th juror chosen today and seat the other 14 (12 regular jurors and 2 alternates).

Details on the Jurors [3]

Juror 2: A white man in his 20s. He’s from Minneapolis and works as a chemist. Because of his profession, he said, “I consider myself a pretty logical person…I rely on facts and logic and what’s in front of me. Opinion and facts are important distinctions for me.” He said he has a generally favorable view of the Black Lives Matter movement but added that “I think all lives matter equally” and that the “Blue Lives Matter” message among police advocates is a counter viewpoint that isn’t necessary. He has not viewed the bystander video of George Floyd’s death. He has visited 38th and Chicago where Floyd was killed because he and his fiancé considered moving to the area.

Juror 9: A multi-race woman in her 20s. She is originally from northern Minnesota and said she was “super excited” to receive her jury summons because she believes it’s her civic duty. She said she was eager to serve regardless of the case, but especially in Chauvin’s trial, given the gravity of it. “It’s a very important case, not just for Hennepin County…but nationwide,” she said. “It’s just something everyone’s heard about, talked about…No matter the decision, people are still going to talk about it.” She said viewing the video of Floyd’s death left her with a “somewhat negative” impression of Chauvin. “No one wants to see someone die,” she said. The woman also said she sees racial disparity in the justice system. In connection with that belief, she added that she agrees somewhat that Minneapolis police officers at times use too much force against Black suspects. She considers herself a “go with the flow” type, and assured that she can be open minded about the evidence. She is the niece of a Brainerd police officer.

Juror 19: A white man in his 30s.He works as an auditor and was chosen for the jury after expressing confidence that he could be fair.He served in a jury five years ago and was dismissed as an alternate. “I was slightly disappointed after hearing the process,” he said. “…I think it’s an important part of our society.” He said he saw at least portions of the video of Floyd’s death and had a somewhat negative view of Chauvin because “someone died, and that’s obviously not a positive thing.” At the same time, the man continued, he said he can examine the evidence “from a viewpoint of the law” before deciding whether or not the defendant is guilty.

Juror 27: A Black man in his 30s. He immigrated to the United States 14 years ago and went to school in Nebraska and moved to Minnesota in 2012. He works in information technology and lives with his wife and dog. He speaks multiple languages, including French. Learning that he was in the jury pool made him “surprised and anxious,” but he realizes it’s his civic duty. While relating to Floyd’s death and thinking “it could be anybody, it could have been you,” he also said, “I believe that I will be impartial.” He said he believes people have the right to protest, but at the same time, he realizes that businesses are shut down and damaged, and his wife is unable to make it to work. He wants to serve on the jury because “it is a service to my community and our country.”

Juror 44: A white woman in her 50s. She is a single mother who works as a high-level executive in the nonprofit sector focused on healthcare. She took the unusual step of summoning her own attorney to the courthouse. At one point, the judge halted the live video feed and cleared the courtroom of everyone except trial participants out of unspecified privacy concerns. The woman said the bystander video left her with a somewhat negative view of Chauvin, explaining that “a man died, and I am not sure that’s procedure. … Not all police are bad, but the bad-behavior police need to go.” At the same time, she acknowledged sympathy for Floyd and the officers at the scene that night, saying, “Everyone’s lives are changed by this incident … and it’s not easy for anyone.”

Juror 52: A Black man in his 30s.He said he has seen the bystander’s video of Floyd’s arrest and that “I don’t think [Chauvin] had any intention of harming anybody, but somebody did die.” When pressed about assessing Chauvin’s intent, the man said he could still “definitely look at [the case] from an objective point of view.”

Juror 55: A white woman in her 50s.She lives outside Minneapolis and works as an executive assistant in a clinical health care setting. She said she has viewed the bystander’s video, but she wrote in her questionnaire filled out months ago, “I couldn’t watch it in full, because it was too disturbing to me.” That said, she pledged that “I’m not in a position to change the law. I’m in a position to uphold the law. … He’s innocent until we can prove otherwise.” 

Juror 79: A Black man in his 40s. He believe s minorities are often arrested but disagrees with the concept of “defunding” law enforcement and said, “the police do a lot. … I would trust the police.”

Juror 86: A multi-race woman in her 40s.She is an organizational consultant who helps corporations improve personnel practices and efficiency. She is married with a son and said she spends a lot of time at ice hockey arenas. Asked about the settlement, the woman said it wouldn’t impact her. “I don’t think that declares guilt one way or the other,” she said.

Juror 89: A white woman in her 50s.She works as a nurse and lives in Edina. She assured the court she could judge the evidence fairly despite having seen portions of the viral video of Floyd’s arrest and after hearing about the settlement. The woman said her professional training would affect how she would look at the evidence. “We all use our life experiences to make judgments,” she said, which in her work include resuscitating patients in urgent situations and dispensing opiates while on the job. The judge interjected and pointed out that she can’t be “an expert witness.”

Juror 91: A Black woman in her 60s.She is a grandmother and retired marketing professional and volunteers helping children in need with their homework. She said she started watching the video of Floyd’s  arrest but stopped after four to five minutes because “it just wasn’t something that I needed to see.” The woman said she has not formed opinions about either Chauvin or Floyd and was firm in saying news of the settlement would not affect her commitment to be an objective juror.

Juror 92: A white woman in her 40s. She lives in the suburbs and works in the insurance industry. Like others, she has viewed the bystander video and was aware of the settlement but said those would not be stop her from being fair and objective as a juror. The woman wrote in her juror questionnaire months ago that she didn’t believe Floyd deserved to die and police didn’t need to use excessive force. However, she continued, Floyd was not completely innocent. She said she has generally positive views of police and opposes any defunding of their departments, but also believes “people of other races get treated unfairly” by law enforcement.

Juror 96: A white woman in her 50s. She has worked in customer service and said she is an animal lover, “especially dogs.” She said she saw the bystander video of Floyd’s arrest and wrote in her juror questionnaire months ago, “This restraint was ultimately responsible for Mr. Floyd’s demise.” That said, she pledged under defense scrutiny that she could presume Chauvin innocent as the law requires her to do.

Juror 118: A white woman in her 20s. She is a newlywed and a social worker in Wright County whose clients are coping with mental health difficulties. She was unwavering in her confidence that she could judge only the evidence presented in the trial and added that her profession has provided her with the ability to be empathetic and keep an open mind about people.

Juror 131: A white man in his 20s.He is an accountant who is married and said he is analytical thanks to his profession and could weigh the evidence fairly. He said that while he understands why athletes kneel during the national anthem to protest racial injustice in America, he wishes they would do so in a different manner. “I think it’s more of a respect of those that have come before us and the system that we have in the United States,” he said. “I have a great sense of pride in being a United States citizen.” He said he has a neutral opinion of Floyd and a generally favorable view of the Black Lives Matter movement, but he believes it was “a contributing factor” in the violent unrest that followed Floyd’s death.

Other Issues Regarding Jury Selection [4]

Last Friday Erik Nelson, defense counsel claimed that 2/3rds of the 326 potential jurors who were summoned for jury duty and completed the court’s questionnaire stated they had a “negative” opinion of Chauvin and a “neutral” opinion about George Floyd.

Racial bias also was raised last week by the defense striking as a juror a Black man after he had said in the courtroom that Black people like himself did not receive equal treatment by Minneapolis police and in the justice system. ”As a Black man, you see a lot of Black people get killed and no one’s held accountable for it and you wonder why or what was the decision and so maybe in the [jury] room [I will get] to know why.”

This potential jury also told the court that the used to live near the site of Floyd’s killing and frequently after someone was shot or arrested, police were known to drive through the neighborhood blasting the song “Another One Bites the Dust” on their squad car’s radio.

Jurors, by the way, are paid $20 per day by the County.

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

[1] See these posts to dwkcommentariees.com: Derek Chauvin Trial: Week One (Mar. 15, 2021); Derek Chauvin Trial: Week Two (Mar. 21, 2021).

[2] Bailey & Berman, Derek Chauvin trial: Jury selection nears completion ahead of next week’s opening statements, Wash. Post (Mar. 22, 2021); Walsh & Sayle, What Happened Monday in the Derek Chauvin trial, StarTribune (Mar. 22, 2021); Walsh, Judge in Derek Chauvin trial determined to select the final juror Tuesday, StarTribune (Mar.23, 2021); Walsh & Olson, 15th and final juror chosen for Derek Chauvin murder trial; opening statements next Monday, StarTribune (Mar. 23, 2021); Bailey, Derek Chauvin trial jury selected ahead of Monday’s opening statements, Wash. Post (Mar. 23, 2021); Levinson & Cooper, The jury has been selected for Derek Chauvin’s trial. Here’s what we know about them, CNN.com (Mar. 23, 2021); Ailsworth & Eastwood, Jury Seated in Derek Chauvin Trial for Killing of George Floyd, W.S.J. (Mar. 23, 2021).

[3] Walsh & Sayle, Who are the jurors in the Derek Chauvin trial?, StarfTribune (Mar. 23, 2021).

[4] See fn. 2 supra; Norfleet, Dismissal of Black potential juror in Derek Chauvin trial prompts division on race and bias  in courtroom, StarTribune (Mar. 22, 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).

Court Issues Order on Expert Disclosures in George Floyd Criminal Cases     

On December 17, Hennepin County District Court Judge Peter Cahill ordered the following:[1]

  • On January 11 at 3:00 p.m. a Zoom remote hearing will be held for consideration of “[v]arious motions by Defendants for continuation of the trial date, attorneys’ fees, and other sanctions for the State’s alleged discovery violations.” (Para. C)
  • By January 15, “All Defendants shall provide initial expert disclosures of experts’ names, curricula vitae and general subject matter on which they will give testimony. (Para. A)
  • By January 19, “the State shall disclose expert reports and findings, and complete written summaries of the subject matter of each expert’s testimony.” (Para. B)
  • By February 8, “Defendants shall disclose expert reports and findings, and complete written summaries of the subject matter of each expert’s findings.” (Para. B)
  • All such expert disclosures “must include all findings, opinion, or conclusions by which each expert is expected to testify; the basis for the findings, opinions and conclusions; and each expert’s qualifications, if not already evident from curricula vitae.” (Para. B.)

On the next day, December 18, the State filed a brief responding to defendant Thao’s motion for sanctions.[2] Its Introduction succinctly says what is amplified in the reset of its pages:

  • “At issue in Thao’s motion are two documents held by the United States Attorney’s Office: notes taken by and FBI agent of an interview of Dr. Baker [the Hennepin County Medical Examiner] and a letter from Dr. Baker, through his legal counsel, clarifying those notes. The State did not initially have possession or control of these documents, but diligently sought to obtain them.” Once the State obtained them, the State promptly disclosed the documents to the defendants in a matter of days.”
  • Although Thao allegedly found out about this purported discovery violation on October 28 [when these two documents were provided by the State, he] filed this motion on December 11, just four days before his December 15 deadline to make expert witness disclosures. . . {Therefore, his] unfounded allegation of a discovery violation appears to be nothing more than cover for a request for more time to meet his discovery violation.”

This skirmish over discovery seems obviated by the above Court order.

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

[1]  Order, Expert Witness Disclosure Deadlines and Hearing on Defendants’ Motions for Trial Continuance, State v. Chauvin, Dist. Ct. File 27-CR-20-12646 (Dec. 17, 2020).

[2]  State’s Response to Defendant Thao’s Motion for Sanctions and Hearing Regarding Discovery by State, State v. Thao, Dist. Ct. File NO. 27-CR-20-12949 (Henn. Cty. Dist. Ct. Dec. 18, 2020). Thao’s motion for sanctions is discussed in the fourth section of Recent Developments in George Floyd Criminal Cases, dwkcomentaries.com (Dec. 12, 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).