Developments in George Floyd Criminal Cases

As previously discussed, the September 11 hearing in the four George Floyd criminal cases had many arguments and disclosures by the parties and judge’s decisions. [1]  Here is a summary of filings in the cases since that hearing.

State’s Response to Chauvin Dismissal Motion [2]

On September 18 the State responded to Derek Chauvin’s motion to dismiss the criminal complaint for alleged lack of probable cause. The State’s 42-page brief had a detailed statement of facts regarding the May 25th police encounter with Mr. Floyd and discussion of the relevant law. Here is its summary of the State’s position:

  • “There is probable cause for each charged offense in the complaint. On May 25, 2020, Chauvin, Kueng, and Lane pinned Floyd to the ground face-down after he was suspected of using a counterfeit $20 bill to purchase a pack of cigarettes. Chauvin pressed his knee into Floyd’s neck and held Floyd’s handcuffed left hand behind his back. Kueng knelt on Floyd’s back and likewise pinned Floyd’s handcuffed arms behind his back. Lane restrained Floyd’s legs with his hands and knees. And Thao—who saw what the other officers were doing and heard Floyd’s cries for help—encouraged the others to continue pinning Floyd down, pushed back a group of concerned bystanders, and prevented them from intervening.”
  • “In the first five minutes Floyd was on the ground, he told the officers at least twenty times that he could not breathe. He told them nearly ten times that he was dying. And then he fell silent. He stopped moving. He stopped breathing. And the officers could not find a pulse. As Floyd lost consciousness, a crowd of bystanders pleaded with the officers. They told the officers they were killing Floyd. They screamed that Floyd had stopped moving. They alerted the officers that Floyd had stopped breathing. And they begged the officers to take Floyd’s pulse. Nonetheless, the officers continued to pin him to the ground—with Chauvin kneeling on Floyd’s neck, Kueng on Floyd’s back, Lane on Floyd’s legs, and Thao standing watch to prevent the bystanders on the sidewalk from approaching the other officers and Floyd.”
  • “All told, the officers held Floyd in that position for approximately nine minutes—about five times longer than the national anthem, and four times longer than President Lincoln’s Gettysburg Address. During that time, Chauvin continued to kneel on Floyd’s neck for about four minutes after Lane told the other officers that Floyd was “passing out,” and for two and a half minutes after Kueng said Floyd did not have a pulse. Indeed, he continued to press his knee into Floyd’s neck for a full minute after emergency medical personnel arrived on the scene, and even while emergency personnel tried to check Floyd’s pulse.”

“Probable cause is manifest. The facts here “would lead a person of ordinary care and prudence to hold an honest and strong suspicion” that Chauvin committed second-degree murder, third-degree murder, and second-degree manslaughter. State v. Ortiz, 626 N.W.2d 445, 449 (Minn. App. 2001). The evidence is more than sufficient to establish probable cause for each offense. This Court should therefore deny Chauvin’s motion to dismiss.”

State’s Motion for Reconsideration of  Disqualification of Hennepin County Attorneys [3]

On September 14, the State asserted that “there is no rule which requires the inclusion of a non-attorney witness when [an attorney is] speaking to an experienced and routine government witness, and ABA guidance specifically contemplates a prosecutor meeting with such a witness one-on-one, and undoubtedly four-on-one, without triggering ethical or practical concerns. . . . [T]he meeting [of] these four[HCAO] prosecutors was not any sort of “sloppy” act or unethical shortcutting. Rather, it was a reasoned decision made by conscientious public servants.”

Moreover, “the State does not plan for any of these attorneys to be a trial advocate in this case, and defense counsel has not actually identified a credible scenario under which any of them would be disqualified from serving as such, e.g. by becoming a “necessary witness” at trial, which is the defense’s burden. With that in mind, it is unwarranted to further restrict the State still more: by prohibiting the State from even consulting with these experienced prosecutors (and thus preventing Mr. Freeman and Mr. LeFevour from supervising these matters). Such a broad removal of Mr. Freeman, Mr. LeFevour, Ms. Sweasy, and Mr. Lofton unduly prejudices the State.” In addition, two of the four attorneys have “recused themselves from the case and have had no further involvement in the case.”

In addition to its citation of relevant rules and cases, the State submitted an affidavit of William J. Wernz, who is described by the Minnesota State Bar Association as the author of Minnesota Legal Ethics: A Treatise and as “one of the nation’s foremost authorities on legal ethics.”  After reviewing the relevant materials, Mr. Wernz stated under oath, “in my opinion the interviews of the Hennepin County Medical Examiner by the HCAO did not furnish any basis for conclusion that they violated Rule 3.7, nor that any of them who acted as advocate at trial would violate Rule 3.7 by so doing.”

State’s Additional Discovery Disclosures [4]

On September 16, the State disclosed that it had provided defense counsel with the body worn camera video of Mr. Floyd’s May 6, 2019 incident with the Minneapolis police. On the same date, the State disclosed its having provided other materials.

Kueng’s Request for Preemptory Challenges [5]

On September 15, Defendant J. Alexander Kueng requested that if the four cases are consolidated for trial, each of the defendants should be granted 10 preemptory challenges (but at least five such challenges) of potential jurors.

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[1] See the following posts and comments in dwk commentaries: Agenda for the 9/11/20 Hearing in the George Floyd Criminal Cases (Sept. 2, 2020); Preview of 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 10, 2020); Comment: Rule 404 Evidence Motions: More Details  (Sept. 10, 2020); More Details on 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 11, 2020);Results of 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 12, 2020).

[2] Chauvin Moves To Dismiss Criminal Complaint, dwkcommentaries (Aug. 28, 2020); State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause, State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept.18, 2020); State’s Exhibits for Opposition to Chauvin’s Dismissal Motion ,State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept.18, 2020).

[3] State’s Notice of Motion and Motion for Reconsideration of Order Prohibiting Participation of Michael O. Freeman and Others, State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept.14, 2020); Affidavit of William J. Wernz, State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept.14, 2020).

[4] Letter, Matthew Frank to Judge Cahill, State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept.16, 2020); Supplemental Prosecution Disclosures Pursuant to Rule 9.01, Subd. 1, State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept. 16, 2020).

[5] Defendant’s Position on Peremptory Challenges, State v. Kueng, File No. 27-CR-20-12953 (Sept. 15, 2020).

 

 

 

 

Status of Civil Litigation Over George Floyd Killing

On July 15, attorneys for the family of George Floyd (by their trustee Kaarin Nelson Schaffer, a Minnesota attorney and resident of Hennepin County) sued the City of Minneapolis and the four ex-police officers involved in Floyd’s death—Derek Chauvin, Tou Thao, Thomas Lane and J. Alexander Kueng. The 40-page Complaint has three counts. “Count I—42 U.S.C. §1983—Fourth Amendment Violations” is asserted against the four ex-policemen while counts II and III are against the City of Minneapolis: “Count II– 42 U.S.C. §1983—Monell Liability” and “Count III–42 U.S.C. §1983—Canton Liability.” [1]

The only development so far in the case is the August 18 filing of a Stipulation for 60-Day Stay of Litigation between the plaintiff and the City of Minneapolis. Such a stay until October 17 was requested “so that the parties may continue to discuss the possibility of a longer stay which would continue until the criminal proceedings against the individual Defendants are completed.”[2]

The next day, two Minneapolis attorneys—Gregory M. Erickson and Erick G. Kaardal–entered their appearances for defendant Derek Chauvin.

Background of U.S. District Judge Susan Richard Nelson[3]

Judge Susan Richard Nelson, who is presiding over this civil case, had 23  years of experience as an attorney in Pennsylvania, Connecticut and Minnesota, the last 16 as a skillful attorney in high stakes civil litigation for an eminent Minneapolis law firm. Then in 2000 the judges of the U.S. District Court for the District of Minnesota appointed her to the position of U.S. Magistrate Judge, who handles various pretrial matters and settlement conferences.

Most relevant for the current civil case over George Floyd from Nelson’s experience as a Magistrate Judge was her supervising settlement discussions over a racial discrimination suit by five high-ranking Black Minneapolis police officers—including current Chief Medaria Arrandondo. In July 2008, “the parties were on the of a $2 million settlement that also included the addition of a new deputy police chief position focused on documenting and responding to reports of discrimination both within the department and in the community. The tentative agreement included data collection about racially based policing and publication of that data; the Police Department’s adherence to terms of a previously proposed federal consent decree; and ongoing court oversight to ensure the settlement agreement’s terms were implemented and followed.”

One of the attorneys for the plaintiffs, Robert Muller, recently said Nelson “artfully encouraged the parties to work towards a potential resolution that included provisions beyond simply monetary relief. Her encouragement prompted the parties to be creative, dig in, and come up with what could have been very meaningful [police] reform.”

However, the Minneapolis City Council failed to approve this settlement. A year later the case was settled, but without the previously agreed upon policy changes.

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[1] See these posts to dwkcommentaries.com: George Floyd’s Family Sues City of Minneapolis and Four Ex-Officers Involved in His Death (July 16, 2020); George Floyd’s Family’s Complaint Against the Four Ex-Police Officers Over His Death (July 17, 2020); George Floyd Family’s Complaint Against the City of Minneapolis Over His Death: Count II (July 18, 2020); George Floyd Family’s Complaint Against the City of Minneapolis Over His Death: Count III (July 19, 2020).

[2] Stipulation for 60-Day Stay of Litigation, Schaeffer v. Chauvin, Civil No. 20-1577 (Aug. 18, 2020, U.S. Dist. Ct., D. Minn.).

[3] Montemayor, Judge overseeing Floyd family’s federal suit no stranger to high stakes litigation, StarTribune (Sept. 6, 2020); Susan Richard Nelson, Wikipedia.

Results of 9/11/20 Hearing in George Floyd Criminal Cases

Information about what happened at the 9/11/20 hearing is provided by many media reports.[1] Here is a summary of those reports, again following the court’s Agenda for the hearing.

State’s Motions

Joint Trial. The State’s arguments were presented by Special Assistant Attorney General Neal Katyal, the famous attorney, law professor and commentator from Washington, D.C. He argued that the evidence against all four defendants is similar, that witnesses and family members are “likely to be traumatized by multiple trials” and that the interests of justice necessitate a single trial because separate trials would taint future juries. He also said, “The defendants watched the air go out of Mr. Floyd’s body together. And the defendants caused Mr. Floyd’s death together.”

Thao’s attorney responded to the last point by arguing that the jury pool already has been tainted by comments about the case by Attorney General Ellison and others.

A St. Paul attorney who is not involved in the case, Paul Applebaum, said, “it’s going to be tough for the defense attorneys to get the cases separated, partly because it would be difficult for Chauvin to blame the other officers for the charges of murder and manslaughter against him, but also because of the burden of holding four separate trials.”

Aggravating Factors for Upward Sentencing. Assistant Attorney General Matthew Frank argued that Floyd was particularly vulnerable because he was handcuffed and pinned to the ground. Judge Cahill expressed some skepticism of this point by asking whether what happens during an encounter qualifies for this purpose.

In  its Notice of Intent To Offer Other Evidence of 9/10/20, the State said it intended to offer evidence of Chauvin’s eight prior instances of use of excessive force, including use of  neck and upper body restraints.  In four of those, Chauvin allegedly used them “beyond the point when such force was needed under the circumstance,” an indication of his pattern, including his restraint of Floyd.[2]

Defendant’s Motions

 Motions for Change of Venue. Judge Cahill said it was too early to decide on a change of venue for the trial. He noted that Hennepin County District Court has been sending questionnaires to potential jurors to complete at home because of COVID risks and for the sake of expediency and that the court could start polling potential jurors ahead of the scheduled March 8 trial.

But two of the defense attorneys argued that the questionnaires should be completed in person at the courthouse because it carries more weight and meaning. Assistant Attorney General Matthew Frank agreed.

In response to defense arguments about adverse public opinion in Hennepin County, the Judge asked one of them, “There really isn’t a country, would you agree, or a state in this country where there hasn’t been a lot of publicity about George Floyd’s death?”

Jury Sequestration. The Judge said “it would be almost cruel to keep them in on weeks at a time. Instead, he suggested they be “semi-sequestered:”  jurors 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.

Motion to Disqualify HCAO [Hennepin County Attorney’s Office]. From the bench Judge Cahill said the HCAO’s work “sloppy” because they sent prosecutors to question the medical examiner, making them witnesses in the case. Therefore, he disqualified County Attorney Freeman and three assistants who questioned the Examiner because they are potential witnesses. However, others from the Office were not disqualified.

Afterwards Freeman and the Minnesota Attorney General requested reconsideration of this decision, which Judge Cahill granted. The request stated, “Any suggestion by Judge Cahill that the work of . . . [two Assistant County Attorneys] was sloppy was incorrect. The . . .[HCAO] fully stands by the work, dedication and commitment of two of the state’s best prosecutors. That third party mentioned by Judge Cahill does not need to be a non-attorney. [The two attorneys in question] asked to leave the case on June 3 and Frank [the other attorney in question] is the attorney of record, making . . .[the other two attorneys] valid third-parties and eligible to be called as witnesses by the defense. This HCAO decision is consistent with the relevant Minnesota Supreme Court case.

Rule 404 Evidence Motions. The Judge denied defense’s intent to offer evidence regarding Floyd’s arrest and conviction in Texas as it was irrelevant. He also denied the defense request for evidence regarding Floyd’s 05/06/19 medical incident at the Hennepin County Medical Center although he said it could come up at a later date.

Administrative Matters

Jury Selection. The Judge said that he anticipates jury selection will take two weeks with each prospective juror to take the witness stand for questioning by the attorneys.

COVID-19 Restrictions. The Judge said these restrictions would be in place with overflow rooms for family and press.

Trail Length. The Judge said he anticipates a four-week trial.

Conclusion

Although I was not in the courtroom to observe the Judge, the journalists’ reports suggest that the Judge is leaning towards a consolidated trial of all four defendants in Hennepin County under his supervision.

During the 3.5 hour hearing a highly organized, peaceful group of several hundred protesters gathered in front of the heavily fortified Family Justice Center. At first they laid silently on the ground for eight minutes and 46 seconds, which was the initially reported duration of the police pinning of Floyd on the pavement on May 25th (that figure was incorrect; the corrected number is seven minutes and 46 seconds).[3] When they rose, Marvin Gaye’s recorded voice sang, “Mother, mother, there’s too many of you crying” (the first verse from the late singer’s 1970 song “What’s going on”).

The protesters then repeatedly chanted, “Indict, Convict, Send These Killer Cops to Jail. The Whole Damn System Is Guilty As Hell!” Another call was “Say his name!” with the “George Floyd” response. Another: “Who killed him?” and “MPD.” The messages on their signs included the following: “No clemency for killer kkkops” and “Recall Freeman” and a reconfigured MPD badge to say “Murderous City of Lakes Police.”

When Lane and Kueng and their attorneys left the building, they were met by protestors yelling “Murderer!” The crowd then remained until Floyd’s family members left the building, and many of the protestors turned into a dance line, including the Electric Slide.

The protestors apparently are not aware that their protests are ammunition for the defendants’ arguments for transferring the cases to another county, where emotions are not so virulent. The protestors should adopt a different strategy.

After the hearing, Ben Crump, an attorney for the Floyd family, publicly expressed outrage over defense suggestions that Floyd’s use of drugs or earlier run-ins with the police were relevant to the killing of Floyd. “The only overdose was an overdose of excessive force and racism. It is a blatant attempt to kill George Floyd a second time.”

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[1]  Xiong & Olson, Judge disqualifies some in Mike Freeman’s office for ‘sloppy work’ in George Floyd case, StarTribune (Sept. 11, 2020); LIVE UPDATES: Tentative 2-week jury selection, 4-week trial format for George Floyd case, kstp.com (Sept. 11, 2020); Judge In Floyd Case Disqualifies Members of Hennepin co. Attorney’s Office, minnesota.cbslocal.com (Sept. 11, 2020); Olson, Protestors confront former Minneapolis police officers with shouts of ‘murderer,’ StarTribune (Sept. 11, 2020); Protestors Shout At Former MPD Officers As They Exit Pretrial Hearing in George Floyd Case, minnesota.cbslocal.com (Sept. 11, 2020); Collins & Williams, George Floyd killing: Judge disqualifies Freeman from cops’ trial, MPRNews (Sept. 11, 2020); Read Hennepin County Attorney Mike Freeman’s response to being disqualified from George Floyd case, StarTribune (Sept. 11, 2020); Furber, Arango & Eligon, Police Veteran Charged in George Floyd Killing Had Used Neck Restraints Before, N.Y. Times (Sept. 11, 2020); Bailey, Prosecutors allege former Minneapolis officer used neck restraint in several other cases before George Floyd’s death, Wash. Post (Sept. 11, 2020); George Floyd’s Family Lawyer Pushes Back on Police Claims (video), N.Y.Times (Sept. 11, 2020); Officers charged in George Floyd killing seek to place blame on one another, Guardian (Sept. 11, 2020).

[2] State’s Notice of Intent To Offer Other Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin county District Court Sept. 10, 2020).

[3] Revised Length of Time for Minneapolis Police Restraint of George Floyd. dwkcommentaries.com (June 18, 2020).

 

More Details on 9/11/20 Hearing in George Floyd Criminal Cases

Yesterday’s post and comment provided a preview for today’s hearing.[1] Here are some more details for the hearing, again following the Agenda for the hearing.

State’s Motions

  1. Motion for Joint Trial.[2]

On September 10, the State submitted a 28-page reply in support of its motion for a joint trial, but time constraints do not allow for its examination and summary in this post.

One of the issues for this motion is whether or not the defendants have antagonistic defenses. Here are more details on that issue.

Chauvin’s attorney has said that his client did not know the full picture of what was happening when he and Thao arrived later on the scene to find Lane and Kueng struggling to get Floyd into the back seat of their squad car. The attorney also suggested that these other two had mishandled the scene by not doing enough to try to calm Floyd, by failing to administer naloxone and by  delaying the request for an ambulance and thereby causing the death.

Chauvin and Thao also may argue that as late arrivals on the scene they were deferring to Lane and Kueng irrespective of their lack of seniority and rank.

Thao will emphasize his “human traffic cone” role while the other three were physically restraining Floyd.

Lawyers for Lane and Kueng, both rookies, have emphasized that they were following the orders of their superior, Chauvin, and that Lane twice tried to intervene to get Floyd turned over, but Chauvin refused. Kueng also may testify about faulty training by Chauvin on how to handle a detention while Kueng and Thao may point to the history of 18 complaints about Chauvin’s conduct as an officer.

Lane’s attorney said, “It is plausible that all officers have a different version of what happened and officers place blame on one another.”

All four, however, apparently are arguing that Floyd’s death was accelerated by drugs in his system

Defendants’ Motions

  1. Discovery Motions.[3]

Late on September 9, the State submitted a response to such motions from all four defendants. Here are its main points:

  • The State already had disclosed the Hennepin County Medical Examiner’s complete file and that although the State had no obligation to disclose the autopsy reports by the Armed Forces Medical Examiner and by experts retained by the Floyd family (Drs. Baden and Wilson), the State had asked these persons for these documents and if they are so provided, the State would provide them to the defendants.
  • With respect to Floyd’s 5/5/19 incident with the MPD, the State had requested any body worn camera footage from the MPD and, if it exists, it would be provided; the Hennepin County Attorney’s Office has no record of a referral for prosecution; and any other prosecuting agencies are not within the State’s control.
  • The State stated there is no factual basis for the request for documents on Floyd’s acting as an informant and gang affiliations and the requests were denied.
  • If possible, the State will produce the MPD training PowerPoints in the original format.
  • The State denied the request for the State’s document indices as privileged attorney work product.
  • The State already has produced the MPD Internal Affairs Public Summaries for all four defendants, but opposes any other disclosure.

Conclusion

On a separate note, there are planned protests near the courthouse on the day of the hearing. As a result, windows on government buildings have been boarded up and law enforcement officials are setting up a perimeter to keep protesters at a distance.

In fact, the hearing will be held in the nearby Family Justice Center, where the Hennepin County Family Court is located, in downtown Minneapolis.

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[1] Preview of 9/11/20 Hearing for George Floyd Criminal Cases, dwkcommentaries.com (Sept. 10, 2020); Comment: Rule 44 Evidence Motions: More Details, dwkcommentaries.com (Sept. 10, 2020). See also Xiong, Several key issues at stake Friday morning in Hennepin County court hearing in George Floyd case, StarTribune (Sept. 10, 2020).; Collins, Judge to hear arguments Friday in Floyd killing case, MPRNews (Sept. 11, 2020).

[2]  State’s Reply in Support of Motion for Joinder, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin county District Ct. Sept. 10, 2020); Bailey, Former Officers charged in George Floyd killing turn blame on each other, Wash. Post (Sept. 10, 2020),

[3] State’s Response to Defendants’ Motions To Compel Disclosure, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin county District Ct. Sept. 9, 2020)

Preview of  the 9/11/20 Hearing in George Floyd Criminal Cases

This preview will follow the Agenda for the 9/11/20 hearing in the four George Floyd criminal cases that has been set by the Hennepin County District Court Judge Peter Cahill.[1]

State’s Motions

  1. Motion for Joint Trial[2]

On August 12, the State asked the court to consolidate all four of the cases for one trial on the grounds that the charges and evidence in all four cases are similar; that there would be less negative impact on witnesses and family members; the defenses of the four ex-officers were not antagonistic; and the interests of justice would be advanced.

Unsurprisingly all of the four defendants are opposing this motion. Here is a summary of their arguments: Chauvin: other defendants likely to blame Chauvin, whose defenses are likely to blame the others and thus they are mutually antagonistic; trying Chauvin first is the sensible approach which would dictate the need for, and scope of, any other trials. Kueng: different evidence on whether and how the defendants worked in close concert; no particularly vulnerable witnesses; antagonistic defenses; interests of justice do not favor joinder. Lane: likely antagonistic defenses with each defendant having different version of what happened and who is to blame, forcing jury to choose between defendants’ testimonies. Thao: Minnesota has favored separate trials; unknown if “overwhelming majority” of evidence will be same in all the cases; Thao did not work in close concert with the others; impact on Floyd family is not a factor; nature of Floyd’s death does not favor joinder; antagonistic defenses are highly likely; COVID-19 favors separate trials with smaller gatherings at each.

  1. Motion to Submit Aggravating Factors to Jury (Blakely)[3]

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

On August 28, the State gave notice of its intent to seek an upward sentencing departure for Chauvin on the grounds that Floyd was particularly vulnerable and was treated with particular cruelty by Chauvin, that Chauvin abused his position of authority, committed the crime as part of a group of three or more offenders who actively participated in the crime and in the presence of multiple children.

  1. Motion for Expert Witness Disclosure[4]

On August 28, the State moved for establishing deadlines of disclosure of expert witnesses with the following suggestions: Initial Expert Disclosures (12/08/20) and full Expert Disclosures (01/08/21).

Defendants’ Motions

  1. Motions for Change of Venue[5]

All four defendants have moved for change of venue with the following arguments: Chauvin (excessive pretrial publicity in Twin Cities); Lane (transfer to Washington or Dakota County because fair trial impossible in Hennepin County); Thao (fair trial impossible In Hennepin County; change to St. Louis, Clay or Crow Wing County); Kueng (prejudicial publicly in Hennepin County; change to  another county “outside the seven-county metro area, such as Stearns County or another county with appropriate facilities and demographics”).

  1. Jury Sequestration and Anonymity Motion[6]

On August 28, Thao moved for jury sequestration and juror anonymity due to “the notoriety of the case.”

  1. Motion to Disqualify HCAO [Hennepin County Attorney’s Office][7]

The only apparent motion to disqualify the HCAO was filed on August 6 by the attorney for Kueng on the ground that the County Attorney had made prejudicial comments about the defendants, and the very next day (August 7) Judge Cahill denied the motion.

Thus, this must be an erroneous agenda item.

  1. Rule 404 Evidence Motions[8]

On August 27, Kueng gave notice that he may offer at trial evidence regarding  (1) the circumstances of (a) Floyd’s 05/06/19 arrest by MPD; (b) Floyd’s 05/06/19 medical intervention at Hennepin County Medical Center; and (c) Floyd’s 08/09/07 arrest and subsequent conviction in Texas for Aggravated Robbery with a Deadly Weapon.

  1. Discovery Motions[9] On August 24, Thao filed a motion to compel discovery of the following regarding the investigation and death of Floyd; (1) complete Hennepin County Medical Examiner’s Office file; (2) any and all reports and autopsies performed by Dr. Michael Baden; (3) any and all reports and autopsies performed by Dr. Allecia Wilson; and (4) entire Office of the Armed Forces Medical examiner file.

On August 28, Chauvin filed a motion for the State’s disclosure of (1) body worn camera/audio from MPD CN-201 9-127538 from Floyd’s arrest; (2) files pertaining to Floyd’s cooperation as an informant for the MPD, FBI or any other state or federal law enforcement agency; (3) files documenting Floyd’s activity as a gang member or affiliate within the past five years; (4) information regarding Floyd’s 05/06/19 drug possession/sale investigation; (5) training materials with active imbedded links to video portions; and (6) index to State’s document disclosures.

Administrative Matters

  1. Jury Selection
  • Method
  • Preemptory Challenges
  1. In-Court Presence/COVID-19 Restrictions
  2. Overflow rooms/Audio-Visual Coverage
  3. Overnight/Special Transcript Requests
  4. Trial Length/Daily Schedule

Substantive Matters

The Judge already has announced that the only substantive matters—the four defendants’ motions to dismiss for alleged lack of probable cause for the criminal charges—will be decided on the briefs and factual record without argument at the hearing.[10] The only new details on these motions is the State’s recent opposition to Defendant Kueng’s dismissal motion and its future opposition to the recent Chauvin motion. [11]

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[1] Agenda for Court’s 9/11/20 Hearing in George Floyd Criminal Cases, dwkcommentaries.com (Sept, 2, 2000); Comment: More Informed Reaction to Agenda, dwkcommentaries.com (Sept. 7, 2020).

[2] Prosecution Requests One Trial for the Four Former Policemen Charged with Floyd Killing, dwkcommentaries.com (Aug. 13, 2020); Chauvin’s Memorandum of Law Opposing the State’s Joinder Motion, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Sept. 8, 2020); Lane’s Defense Objection to State’s Motion for Joinder, State v. Lane, Court File No. 27-CR-20-12951 (Hennepin County Dist. Ct. Sept. 8, 2020); Kueng’s Objection to the State’s Motion for Joinder, State v. Kueng Court File No. 27-CR-20-12953 (Hennepin County Dist. Ct. Sept. 8, 2020); Thao’s Memorandum in Opposition to State’s Motion for Joinder, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County Dist. Ct. Sept. 8, 2020);  Xiong, Attorneys for former officers in George Floyd murder case want separate trials, StarTribune (Sept. 8, 2020).

[3]  State’s Notice of Intent To Seek an Upward Sentencing Departure, State v. Chauvin, et al.,Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Aug. 28, 2020).

[4] State’s Notice of Motion and Motion for Expert Disclosure Deadlines, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Aug. 28, 2020).

[5] Chauvin’s Notice of Motions and Motions To Change Venue and Reserve Ruling, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Aug. 28, 2020); Lane’s Notice of Motion and Motion To Change Venue, State v. Lane, Court File No. 27-CR-20-12951 (Hennepin County Dist. Ct. Sept. 8, 2020);  Thao’s Notice of Motion and Motion for Change of Venue, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County Dist. Ct.Aug. 28, 2020); Defendant Kueng Moves for Dismissal and Change of Venue in George Floyd Case, dwkcommentaries.com (Aug. 28, 2020).

[6] Thao’s Notice of Motion and Motion To Sequester Jurors, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County Dist. Ct.Aug. 28, 2020).

[7]  Court Denies Ex-Officer Kueng Motion To Remove County Attorney from George Floyd Criminal Case, dwkcommentaries.com (Aug. 7, 2020).

[8] Kueng’s Notice of Additional Evidence, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County Dist. Ct. Aug. 27, 2020).

[9] Thao’s Motion to Compel Disclosure, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County Dist. Ct.Aug. 24, 2020); Chauvin’s Notice of Motion and Motion for Disclosure, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Aug. 28, 2020).

[10] See these posts to dwkcommentaries.com: Ex-Officer Lane Moves for Dismissal of Criminal Charges for George Floyd Killing (July 9, 2020);  Comment: Prosecutors Oppose Ex-Cop Thomas Lane’s Dismissal Motion (Aug. 12, 2020); Prosecution Opposes Lane’s Dismissal Motion (Aug. 21, 2020); Lane’s Reply to Prosecution’s Opposition to Dismissal of Complaint (Aug. 22, 2020); Ex-Officer Thao Moves for Dismissal of Criminal Charges for George Floyd Killing  (July 30, 2020); Defendant Thao’s Dismissal Motion (Aug. 25, 2020); Prosecution Opposes  Defendant Thao’s Dismissal Motion for George Floyd Killing (Aug. 27, 2020); Defendant Kueng Moves for Dismissal and Change of Venue in George Floyd Case (Aug. 28, 2020); Chauvin Motion To Dismiss Criminal Complaint (Sept. 9, 2020).

[11] State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County Dist. Ct. Sept. 8, 2020); Exhibits to State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County Dist. Ct. Sept. 8, 2020). See generally List of Posts to dwkcommentaries–Topical: George Floyd Killing.

 

Chauvin Moves To Dismiss Criminal Complaint 

On August 28, former Minneapolis police officer Derek Chauvin filed a motion to dismiss the criminal complaints against him.[1] Here is a summary of this motion.

Dismissal of Count I–Second Degree Unintentional Murder

 Count I of the Amended Complaint alleges Chauvin is guilty of Second Degree Unintentional Murder by reason of his allegedly committing a Third Degree Assault. But it does not even “allege that Mr. Chauvin possessed the intent to inflict bodily harm upon Mr. Floyd.” And “the State has offered no evidence to support the intent element of third-degree assault.” (Chauvin Memo at 9.)

Instead, the evidence shows that Floyd “was struggling in and around the squad [car] at a busy Minneapolis intersection. He was handcuffed and acting erratically. Continued struggle posed a risk of injury to Mr. Floyd and, potentially, to officers. The decision to use MRT allowed officers to restrain Mr. Floyd without injury until EMS arrived on scene. Mr. Chauvin, who arrived at the scene as officers were already struggling with Mr. Floyd, checked to ensure that EMS had been called.” (Id. at 9-10.)

“The Medical Examiner found no bruising on Mr. Floyd’s neck or on any neck muscles or any injury to neck structures. There was no bruising on Mr. Floyd’s back or evidence of blunt trauma to his back. If Mr. Chauvin had intended to inflict harm to Mr. Floyd’s back and neck with his knee, surely there would be evidence of bruising. But clearly, Mr. Chauvin was cautious about the amount of pressure he used to restrain Mr. Floyd—cautious enough to prevent bruising. Video evidence shows Mr. Chauvin was calm and professional throughout the application of MRT” or Maximal Restraint Technique that was a technique approved by the Minneapolis Police Department. (Id. at 10.)

Dismissal of Count II–Third-Degree, Depraved Mind Murder

“Count II of the Amended Complaint charges Mr. Chauvin with Third Degree Murder— Perpetrating Eminently Dangerous Act and Evincing Depraved Mind, in violation of Minn. Stat. § 609.195(a). Under Minnesota law, however, ‘[d]epraved mind murder cannot occur where the defendant’s actions were focused on a specific person.’ State v. Barnes, 713 N.W.2d 325, 331 (Minn. 2006) (citing State v. Wahlberg, 296 N.W.2d 408, 417 (Minn. 1980)).” (Id. at 11.)

“As the Minnesota Supreme Court has explained, ‘We have made clear that the statute covers only acts committed without special regard to the effect on any particular person or persons.’ State v. Zumberge, 888 N.W.2d 688, 698 (Minn. 2017). ‘[T]he act must be committed without a special design upon the particular person or persons with whose murder the accused is charged.’ Id. (appellant’s claims that he shot “toward” not “at” the decedent precludes a third degree murder instruction) (citation omitted). Third degree murder is reserved to cover cases where the act was ‘reckless or wanton,’ such as firing a gun into a bus or driving a vehicle into a crowd. Wahlberg, 296 N.W.2d at 417. That is simply not the case here.” (Id. at 11.)

Dismissal of Count III—Culpable Negligence Manslaughter

 This charge requires proof of the actor’s “objective gross negligence” and “subjective recklessness.” (Id. at 12.)

Under Minnesota cases, “objective gross negligence” is an act that was “a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.” Here, Chauvin as a police officer in an emergency situation under Minnesota case law had ‘significant independent judgment and discretion’ . . . ‘precisely because a more stringent standard could inhibit action.’ (Id. at 12-13.)

Chauvin’s attorney then argues,  “Such discretion often comes into play when an officer must gauge how much force to use in order to effect an arrest. The amount of force authorized is dependent on the subject being arrested, the circumstances of the arrest, and the ever-developing fact pattern of any arrest scenario.” (Id. at 13.)

Here, “Chauvin was acting within his duties to execute a legitimate legal process—assisting other officers with effecting their arrest of George Floyd,” who was actively resisting arrest when Chauvin arrived on the scene. Quoting Minnesota cases, in such cases, an ‘officer may use all necessary and lawful means to make the arrest’ and is authorized “to escalate their use of force, short of deadly force, as necessary.” Here, under MDP policy, the use of MRT was authorized because Floyd was ‘handcuffed, . . .combative and still pose a threat to themselves, officers or others, or could cause significant damage to property if not properly restrained.” (Id. at 14-19.)

Moreover, the evidence shows Chauvin performed the MRT in accordance with MPD training materials and manuals and did not actually and consciously disregard the risks associated with MRT. And the Hennepin County Medical Examiner found no bruising on Floyd’s neck or muscles or neck structures or on his back. (Id. at 14-20.)

Dismissal of All Counts—Chauvin Did Not Cause Floyd’s Death

According to the relevant Minnesota statutes and cases, conviction for homicide requires that ‘the act of the defendant [was] the proximate cause of death of [the victim] without the intervention of an efficient independent force in which the defendant did not participate or which he could not reasonably have foreseen” or that “the defendant’s conduct was a ‘substantial causal factor’ in bringing about the victim’s death.” (Id. at 21.)

Chauvin’s attorney then asserts, “Mr. Chauvin was not the proximate cause of Mr. Floyd’s death, because an ‘independent force’ . . . in which Mr. Chauvin ‘did not participate’ and which ‘he could not reasonably have foreseen’ intervened: Fentanyl.” (Id.)

“It is clear from the evidence that Mr. Floyd was under the influence of narcotics when he encountered the officers and that he most likely died from an opioid overdose. . . . His body contained a lethal dose of fentanyl—[1ng/ml—as well as methamphetamine, at the time of his death.” Indeed, Chauvin quotes the Hennepin County Medical Examiner, Dr. Andrew Baker, telling the prosecutors on June 1, ‘If he were found dead at home alone & no other apparent causes, this could be acceptable to call an OD [overdose].’ [2] But Chauvin’s attorney does not quote the next note: “Baker. I am not saying this killed him.” (Emphasis added.)

Moreover, Chauvin’s attorney does not quote Dr. Baker’s actual autopsy report (5/26/20) that was titled “Cardiopulmonary Arrest complicating Law Enforcement Subdual, Restraint, and Neck Compression” or the County Medical Examiner’s Press Release (05/26/20) with the same statement for “Cause of Death” plus ‘How injury occurred: Decedent experienced a cardiopulmonary arrest while being restrained by law enforcement officer(s)’ and ‘Manner of death: Homicide.’[3]

Also not quoted by Chauvin’s attorney were the June 10 report by the Defense Health Agency concurring with the ‘autopsy findings and the cause of death certificate’ by the Hennepin County Medical Examiner. Or the findings of Dr. Michael Baden and Dr. Allecia Wilson, who were retained by the attorneys for the Floyd family, that found that Floyd ’died of traumatic asphyxia due to the compression of his neck and back during restraint by police’ and ‘Manner of Death’ was ‘homicide.’ State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020).[4]

Chauvin’s attorney admits in this brief that Floyd “told officers that he had suffered from COVID-19.” Moreover, Chauvin arrived at the scene with fellow ex-officer Thao, who testified during an interview by the Bureau of Criminal Apprehension (BCA) and FBI, that when he and Chauvin were driving to join Lane and Keung at the scene they were told on the phone that someone who had appeared to be intoxicated had passed a fake bill at Cup Foods and after arrival Thao had heard Floyd say he had had COVID-19 while he was in the back seat of a squad car before he went to the pavement outside the car and Thao had been worried that Floyd was on drugs.

Chauvin’s attorney boldly states that even though Lane and Keung may have observed signs of Floyd’s overdose and medical trauma, “none of this information was shared with Mr. Chauvin. Therefore, “Chauvin was unaware of the potential dangers of using MRT on Mr. Floyd.” (Chauvin Memo at 25-26 (emphasis in original).) This appears to be an unfounded overstatement of the record.

Conclusion

Given the recent filing of this Chauvin motion, as of noon on September 9, the State had not yet responded to this motion, but clearly it will oppose same before the court considers and rules on the four dismissal motions on the briefs and record.

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[1] Defendant’s Notice of Motions and Motions To Dismiss, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020);  Memorandum of Law in Support of Defendant’s Motion To Dismiss, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Defendant’s Exhibit List in Support of Motion To Dismiss for Lack of Probable Cause, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Hennepin County Medical Examiner’s autopsy report (5/26/20) (Ex. 20),  State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Hennepin County Attorney’s Office memos of interviews of Dr. Andrew Baker (Hennepin County Medical Examiner) on 5/26/20, 5/27/20 & 5/31/20, (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Notes from Hennepin County Attorney’s [6/1/20] interview with Dr. Andrew Baker{Hennepin County Medical Examiner], (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Hennepin County Attorney’s Office summary of communications with Chief Tim Longo, University of Virginia Police Department (5/26/20-6/3/20) (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Defense Health Agency autopsy summary report (6/10/20) (Ex. 19), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Summary of autopsies of Floyd by Drs. Baden and Wilson on behalf of Floyd Family (7/2/20) (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020). See also Raice & Ailworth, George Floyd’s Death Likely Caused by Drug Overdose, Argue Derek Chauvin’s Lawyers, W.S.J. (Aug. 28, 2020); Bailey, In new filing, Derek Chauvin previews his defense, but also seeks dismissal of charges, Wash. Post (Aug. 29, 2020); Olson, Chauvin lawyer: Restraint didn’t kill Floyd, ill health and drug abuse did, StarTribune (Aug. 29, 2020).

[2] Chauvin Memo at 22; Hennepin County Attorney’s Office, Notes from Notes from [6/1/20] interview with Dr. Andrew Baker{Hennepin County Medical Examiner], (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020).

[3] Affidavit of Matthew Frank Exs. 4 & 5 (Aug 10, 2020), State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court Aug. 10, 2020).

[4] Summary of Dr. Michael Baden and Dr. Allecia Wilson’s findings (7/2/20), (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020) (Exs. 6, 19)

 

Agenda for Court’s 9/11/20 Hearing in George Floyd Criminal Cases      

On September 1, Hennepin County District Court Judge Peter Cahill issued an order establishing the following agenda for the September 11th hearing in the four criminal cases over the killing of George Floyd. [1]

State’s Motions

  1. Motion for Joint Trial
  2. Motion to Submit Aggravating Factors to Jury (Blakely)
  3. Motion for Expert Witness Disclosure

Defendants’ Motions

  1. Motions for Change of Venue
  2. Jury Sequestration Motion
  3. Anonymous Jury Motion
  4. Motion to Disqualify HCAO [Hennepin County Attorney’s Office]
  5. Rule 404 Evidence Motions
  6. Discovery Motions

ADMINISTRATIVE MATTERS

  1. Jury Selection (Method; Peremptory challenges)
  2. In-Court Presence/COVID-19 Restrictions
  3. Overflow rooms/Audio-Visual Coverage
  4. Overnight/Special Transcript Requests
  5. Trial Length/Daily Schedule

The Order also stated that this Agenda was “subject to modification at the hearing itself.” In addition:  “Further briefing may be ordered or requested by the parties. Barring an order for further submission, the Court will consider those matters to be under advisement as of September 11, 2020 with a 90-day order deadline [or until December 10]. The court will attempt, however, to issue some if not all decisions on or before October 15, 2020. Motions to dismiss for lack of probable cause will be decided on briefs and accompanying exhibits.”

Reactions

Although this blogger had anticipated the court’s issuing an agenda for the upcoming hearing, the above agenda was surprising in several respects.

First, the relegation of the four dismissal motions to the briefs and accompanying exhibits (without oral argument) was the greatest surprise to this retired attorney without any criminal law experience.  I had thought the first item on the agenda would be the dismissal motions with Chauvin’s first focused on the murder and manslaughter charges. Then the court would consider the three other dismissal motions focused on the aiding-and abetting issues. Does this relegation of these motions to the papers indicate that Judge Cahill already has made up his mind on these motions and merely needs time to do definitive research and write the decisions?

Second, the “Administrative Matters” all apparently assume the trial or trials will be held by the same court. Does this suggest Judge Cahill already has decided to deny the motions to change venue? Does it also suggest that the Judge has decided to grant the prosecution’s motion for joint trial although that is the first item on the agenda?

Third, although this blogger has frequently checked the court’s public list of materials in these four cases, some of the items in the Court’s agenda for the upcoming hearing are not familiar.

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[1]  Scheduling Order and Joint Motion Hearing Agenda, State v. Chauvin, Thao, Lane & Kueng (Hennepin  County District Court, State v. Chauvin, Thao, Lane & Kueng, Dist. Ct. File 27-CR-20-12646 [& 12949, 12951 & 12953] September 1, 2020).

 

Defendant Kueng Moves for Dismissal and Change of Venue in George Floyd Case

On August 27, J. Alexander Kueng, a former Minneapolis police officer, submitted a motion to dismiss the criminal complaint against him and to change the venue of the case from Hennepin County to a county with “appropriate facilities and demographics,” such as Stearns County. [1]

Motion To Dismiss [2]

Most of the eight-page dismissal motion was a legal memorandum in support of the motion to dismiss for alleged lack of probable cause for the charges of aiding and abetting second degree murder and second-degree manslaughter. Its statement of facts purports to be taken from the criminal complaint.

No Aiding and Abetting Second-Degree Murder. “The restraint used on Floyd by Chauvin was reasonable. As the complaint notes, officers are trained on how to use the neck restraint involved here. Moreover, the restraint has been found to be reasonable when the subject “actively resists,” citing Lombardo v. City of St. Louis, 956 F.2d 1009, 1013 (8th Cir. 2020).

Although the complaint does not say Floyd resisted, its description of his actions “show he resisted. He resisted and fell to the ground when Lane and Kueng tried to pick him up off the sidewalk. . . . Floyd would not voluntarily get into the squad [car]. Multiple officers tried to get him into the squad , and when Floyd continued to resist, Chauvin pulled Floyd onto the ground. Floyd continued to resist by calling out while he was on the ground. Given Floyd’s resistance, the use of neck restraint was reasonable.”

“[T]here is no evidence that Kueng knew Chauvin was going to commit a crime at the time and during the time Chauvin utilized the neck restraint. [Twice Chauvin rejected Lane’s suggestion of rolling Floyd onto his stomach, showing Chauvin did not consider his use of force to be unreasonable.] There is no evidence that Kueng knew Chauvin was going to commit or was committing a third-degree assault” or that “Kueng intended his presence to further a crime.”

No Aiding and Abetting Second-Degree Manslaughter. “Chauvin’s actions were not objective gross negligence. He used a technique that he was trained to use and that the Eighth circuit has found to be reasonable.” Nor was Chauvin’s conduct subjectively reckless. Moreover, the “complaint does not establish that Kueng knew Chauvin was going to negligently commit a crime or that he did so or that “Kueng intended his presence to further the commission of a negligent act.”

Motion To Change Venue [i3]

Kueng also moved for a change of venue from Hennepin County to another county “outside the seven-county metro area, such as Stearns County or another county with appropriate facilities and demographics.”

This motion was based upon “’potentially’ prejudicial material that has been disseminated publicly by the prosecution, creating a reasonable likelihood that a fair trial in the metro area cannot be had.” It also asserts that there have been over 1,700 local articles about these criminal cases.

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[1] Xiong, Former officer in George Floyd case seeks change of venue, dismissal of charges, StarTribune (Aug. 27, 2020).

[2] Notice of Motion and Motion To Dismiss for Lack of Probable Cause, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County District Court August 27, 2020). Kueng also submitted a Notice of Additional Evidence regarding (a) Floyd’s May 6, 2019, Minneapolis arrest for sale and possession of large quantities of controlled substances and  his immediate medical intervention at Hennepin County Medical Center; and (b) his August 9, 2007, Texas arrest and subsequent conviction for Aggravated Robbery with a Deadly Weapon. (Notice of Additional Evidence,, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County District Court August 27, 2020).

[3] Notice of Motion and Motion To Change Venue, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County District Court August 27, 2020).

Defendant Thao’s Dismissal Motion   

Defendant Tou Thao has been charged with the crimes of aiding and abetting the murder and manslaughter of George Floyd, and on July 29, his attorney moved for dismissal of these charges.[1] On August 24, the prosecution responded to this motion.[2]

This post will discuss Thao’s arguments for dismissal, and a subsequent post will look at the prosecution’s counter arguments.

No Probable Cause That Chauvin Committed a Crime[3]

 Under Minn. Stat. sec. 609.06, subd. 1, a police officer is immune when using reasonable force to effect a lawful arrest. Here, “Floyd became agitated and resisted [arrest] in both active and passive manners.” Therefore, Chauvin used “reasonable force” to effect a lawful arrest by administering a non-deadly MPD-approved neck restraint, either a “Conscious Neck Restraint” or an “Unconscious Neck Restraint.”

Therefore, Thao cannot be held criminally liable for aiding and abetting a non-crime.

No Probable Cause That Thao Had the Mens Rea for Aiding and Abetting[4]

The prosecution has failed to show probable cause that “Thao (1) knew Chauvin and others [Lane and Kueng] were going to commit a crime and (2) intended his presence to further the commission of that crime.” On the contrary, Thao saw the other three officers using force authorized by MPD policy.

No Probable Cause That Thao Aided The Others’ Committing a Crime[5]

The prosecution failed even to allege what Thao did that amounted to aiding and abetting his fellow officers in committing a crime. Moreover, “mere presence at the crime scene alone is not sufficient” . . .[for this purpose] because inaction, knowledge or passive acquiescence does not rise to the level of criminal culpability.” (State v. Pendleton, 759 N.W.2d 900 (Minn. Sup. Ct. 2009); State v. Huber, 877 N.W.2d 519, 525 (Minn. Sup. Ct. 2016);  State v. Ostrem, 535 N.W.2d 916, 924 (Minn. Sup. Ct. 1995); State v. Ulvinen, 313 N.W.2d 425 (Minn. Sup. Ct. 1981).)

Here, “Thao spent the time during the arrest of Mr. Floyd focused on keeping the civilian bystanders out of the scene to allow the other three officers to effectuate the legal arrest and to turn Mr. Floyd over to responding medical personnel. Officer Thao did nothing to aid in the commission of a crime.”

Conclusion

On August 24, Thao’s attorney submitted a motion to compel disclosure of (1) the complete Hennepin County Medical Examiner’s Office file; (2) the reports and autopsies performed by Dr. Michael Baden; (3) the reports and autopsy performed by Dr. Allecia Wilson; and (4) the Office of the Armed Forces Medical examiner entire file.” Thao also moved to “continue the issue of causation of death from the September 11, 2020 Omnibus hearing date to a date to be scheduled.” [6]

The next post we will examine the prosecution’s responses to this motions for dismissal and disclosure. Then we wait to see if Thao will submit a reply to the prosecution’s arguments and the September 11 court hearing on this and other matters.

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[1] Ex-Officer Thao Moves for Dismissal of Criminal Charges for George Floyd Killing, dwkcommentaries.com (July 30, 2020), Notice of Motion and Motion To Dismiss, State v. Thao, Court file No. 27-CR-20-1249 (Hennepin County District Court July 29, 2020); Memorandum in Support of Motion to Dismiss, State v. Thao, Court file No. 27-CR-20-1249 (Hennepin County District Court Aug. 5, 2020).

[2] Xiong, Former officer who held back crowd at George Floyd death should face trial, prosecutors argue, StarTribune (Aug. 24, 2020); Assoc. Press, Prosecutors Depict Ex-Officer as Complicit in Floyd’s Death, N.Y. Times (Aug. 25, 2020); State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause, State v. Thao, Court file No. 27-CR-20-1249 (Hennepin County District Court Aug. 24, 2020); Affidavit of Matthew Frank, State v. Thao, Court file No. 27-CR-20-1249 (Hennepin County District Court Aug. 24, 2020); [Prosecution] Motion To Compel Disclosure, State v. Thao, Court file No. 27-CR-20-1249 (Hennepin County District Court Aug. 24, 2020).

[3] Memorandum in Support of Motion to Dismiss (n. 1), at 9-12.

[4] Id. at 5-6.

[5] Id. at 6-9.

[6] [Thao’s] Motion To Compel Disclosure, State v. Thao, Court File No. 27-CR-20-1249 (Hennepin County District Court Aug. 24, 2020).

 

Lane’s Reply to Prosecution’s Opposition to Dismissal of Criminal Complaint 

On July 7, the attorney for defendant Thomas Lane filed a motion to dismiss the criminal complaint against him.[1] On August 10 the prosecution filed its papers opposing that motion.[2] On August 17, Lane’s attorney  submitted his reply to the State’s Response.[3]

As noted ,the first two sets of papers have been covered in prior posts. This post will review Mr. Lane’s reply papers.

Legal Standard for Aiding and Abetting Criminal Liability

Both sides necessarily are agreed that the standard for aiding and abetting criminal liability starts with the Minnesota statute on the subject—Minn. Stat. sec. 609.05 (Liability for Crimes of Another), which is derived from legislation adopted in 1963, 1986 and 1991. Its Subdivision 1 states as follows:

“A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.”

According to Mr. Lane’s attorney, the “seminal” Minnesota Supreme Court case on this provision is State v. Ulvinen, 313 N.W.2d 425 (1981)(en banc), which reversed a conviction of a mother for aiding and abetting her son’s first degree murder of his wife.

According to the Supreme Court, the son told the police that on the morning of the murder he told his mother, “I’m going to have to choke. . . [his wife] tonight and I’ll have to dispose of her body so that it will never be found.” In response his mother weeped and said, “it will be for the best.” Later that same day, the son told his mother, “Mom, tonight’s got to be the night.” She replied, as she had on other similar occasions, “Oh, you’re just kidding me.  I’m not certain, that it would be the best for the kids.”

The mother was asleep when the son committed the murder and she did not participate in his dismemberment of the body. Afterwards that same night she “came upstairs to intercept the children, should they awake, and prevent them from going into the bathroom. She cooperated with her son by cleaning some items from the bathroom and corroborating David’s story to prevent anyone from finding out about the murder.”

Said the en banc Supreme Court, “ these subsequent actions do not succeed in transforming her behavior prior to the crime to active instigation and encouragement. Minn.Stat. § 609.05, subd. 1 (1980) implies a high level of activity on the part of an aider and abettor in the form of conduct that encourages another to act. Use of terms such as ‘aids,’ ‘advises,’ and ‘conspires’ requires something more of a person than mere inaction to impose liability as a principal.” (Lane’s Reply at 13; emphasis added.)

 In addition, said the Court, the above statute “imposes liability for actions which affect the principal, encouraging him to take a course of action which he might not otherwise have taken. The state has not proved beyond a reasonable doubt that appellant was guilty of anything but passive approval. However morally reprehensible it may be to fail to warn someone of their impending death, our statutes do not make such an omission a criminal offense.” In so concluding, the Court said the mother “did not offer advice on how to kill his wife, nor offer to help him. She did not plan when to accomplish the act or tell her son what to do to avoid being caught. She was told by her son that he intended to kill his wife that night and responded in a way which, while not discouraging him, did not aid, advise, or counsel him to act as he did.”

Lane’s attorney also asserted that the above holding of Ulvinin was followed by at least the following subsequent Minnesota Supreme Court cases: (1) State v, Mahkuk, 367 N.W.2d 675, 683 (Minn. Sup. Ct. 2007)(reversal of conviction for aiding and abetting two murder counts because trial court’s jury instruction did not require the jury to find, beyond a reasonable doubt, that the defendant knew that a crime was going to be committed and intended his presence to encourage or further the crimes); (2) State v. Milton, 821 N.W.2d 789, 804 (Minn. Sup Ct. 2012) (affirmance of conviction of first-degree felony murder and attempted first degree felony murder; defendant failed to show that his substantial rights were affected by the trial court’s plain error in failing to instruct the jury that “intentionally aiding” was required for accomplice liability); (3) State v. Bahtuoh, 840 N.W.2d 804, 812-13 (Minn. Sup Ct. 2013) (affirmance of conviction for accomplice liability for first degree felony murder; the “intentionally aids” requirement has ‘two and necessary principles: . . .that the defendant knew that his alleged accomplices are going to commit a crime’ and . . . that the defendant ‘intended his presence or actions to further the commission of that crime;’”[4] State v. McCallister, 862 N.W.2d 49 (Minn. Sup. Ct. 2015)(affirmance of conviction for aiding and abetting first degree murder and first degree felony murder); (5) State v. Huber, 877 N.W.2d 519, 524 (Minn. Sup. Ct. 2016))(reversal and remand of conviction for intentionally aiding another in committing second degree murder and second degree felony murder on the ground that the instructions on accomplice liability were  plainly erroneous; such an instruction “must explain that to be criminally liable for the crimes of another, the State must prove that the defendant ‘knew his alleged accomplice was going to commit a crime and the defendant intended his presence or actions to further the commission of that crime.’”

Lane’s reply also cites a number of decisions of the U.S. Supreme Court and the U.S. Court of Appeals for the Eighth Circuit, which includes Minnesota., but since it is unlikely that any of them concern the Minnesota statute for accessory liability, it should not be necessary to analyze these cases.

Additional Factual Allegations about George Floyd

Lane’s reply contains nine-plus pages reciting additional “facts” about Mr. Floyd that his attorney recently has discovered. Since these “facts” were not known at the police’s May 25th fatal encounter with Mr. Floyd, it is difficult to see how they relate to the complaint for alleged aiding and abetting and if admissible at trial would go to the jury’s weighing all of the evidence.

Conclusion

The Prosecution’s papers opposing the dismissal motion, for this retired attorney without criminal law experience, seem weak on this key requirement for the aiding and abetting charges against  Lane.

This blogger invites anyone who has a more thorough analysis of the issues on Lane’s dismissal motion to add them in comments to this post.

Now we await the September 11 hearing on this motion and other matters in the four criminal cases over the killing of George Floyd.

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[1] Ex-Officer Lane Moves for Dismissal of Criminal Charges for George Floyd Killing, dwkcommentareis.com July 9,  2020); Notice of Motion and Motion To Dismiss, State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court July 7, 2020); Memorandum Supporting Motion To Dismiss, State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court July 7, 2020).

[2]  State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause, State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court Aug. 10, 2020); Affidavit of Matthew Frank, State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court Aug. 10, 2020).

[3] Defendant’s Reply to the State’s Response to His Motion To Dismiss, State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court Aug. 17, 2020); Browning & Xiong, Lawyer for former officer charged as accomplice in killing of George Floyd says he ‘did nothing wrong,’ StarTribune (Aug. 18, 2020); Xiong, Audio of investigators questioning officer [Lane] in George Floyd killing released, StarTribune (Aug. 18, 2020); Read, Attorney for Minneapolis police officer says he’ll argue George Floyd died of an overdose and a heart condition, Los Angeles Times (Aug. 20, 2020).

[4] The Prosecution says that Bahtuoh suggests that Ulvinen’s requirement for a “high level of activity” by an alleged accomplice” is no longer the law. In the opinion of this blogger, however, this is a misreading of Bahtuoh, which merely states,”A jury may infer the requisite state of mind [of an accessory] from a variety of facts, including presence at the scene of the crime, a close association with the principal offender before and after the crime, a lack of objection or surprise under the circumstances, and flight from the scene of the crime with the principal offender.” (Prosecution’s Opposition at n.16, p. 25; emphasis added.)