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).

 

 

 

 

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)