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).

 

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.