Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases

On November 5, the Hennepin County District Court issued five significant orders regarding the joint criminal trial of Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thao over the killing of George Floyd. These orders (1) granted the State’s motion for a joint trial of the four defendants; (2) preliminarily denied the defendants’ motions for change of venue; (3) provided for  juror anonymity and sequestration; (4) allowed audio and video coverage of the trial; and (5) narrowed its previous order regarding four members of the Hennepin County Attorney’s Office’s participation in the cases.[1]

On November 16, various motions and briefs were submitted objecting to the recent orders for a joint trial and allowing audio and video coverage of the trial as well as the pending motions for allowance of evidence of prior incidents of the four defendants and of Mr. Floyd. The most significant of these papers, in this blogger’s judgment, was Thomas Lane’s motion for reconsideration of the order for a joint trial of the four defendants, which, therefore, will be discussed first.

Lane’s Motion To Reconsider Joinder for Trial[2]

Lane argued that the order for joinder is premature as it does not consider the prejudice that will be caused by admission of evidence of prior incidents involving the other three defendants, none of which involved Lane.

Most significantly, Lane asserted that his  defense will be antagonistic to Chauvin in that he will be “pointing the finger” at Chauvin and that if Lane had known of Chauvin’s prior incidents, Lane would have acted differently. (Emphasis added.) (This is believed to be the first time that any of the defendants has pointed the finger at Chauvin, the principal actor in the death of Floyd.)

Moreover, said Lane’s attorney, the Court’s opinion regarding aiding and abetting liability was erroneous since it was inconsistent with a 2014 opinion of the U.S. Supreme Court, which, among other things, said such liability requires the defendant to have “advance knowledge that a crime is being committed.” (Emphasis added.)[3]

Finally, according to Lane’s attorney, a recently disclosed FBI report about its July 8th interview of Hennepin County Medical Examiner, Dr. Andrew Baker, contains significant points helpful to Lane and the other defendants.. Here are this blogger’s extracts of that report with emphasis on the points helpful to the defendants.

  • Baker’s office’s press release about its examination of Floyd’s body apparently mentioned ”cardiopulmonary arrest,” which “for a lay person would be the stopping of the heart and lungs. Other factors that contributed to Floyd’s cardiopulmonary arrest included hypertension, the presence of fentanyl and methamphetamine, as well as arteriosclerotic heart disease.”(P. 038777) (Emphasis added.)
  • “The term ‘complicating’ in the case title was a medical term meaning occurring after, during, or as a result of.” (P. 03877)
  • Baker defined the mechanism of death as Floyd’s heart and lungs stopping due to the combined effects of his health problems as well as the exertion involved in Floyd’s interaction with police prior to being on the groun” (Pp. 038777-78.) (Emphasis added.)
  • There was no evidence that Floyd’s airway was literally blocked shut. When viewing the body camera footage, the pressure did not appear to be directly over Floyd’s airway. Floyd would have been unable to speak if pressure was directly over his airway.” (P. 03778.) (Emphasis added.)
  • Officer Chauvin’s positioning on Floyd’s body does not fit anatomically with occluding Floyd’s airway.” (P. 038778.) (Emphasis added.)
  • There was no anatomic evidence of injury to Floyd’s neck but that does not rule out that pressure was applied by Chauvin.” (P. 038778.) (Emphasis added.)
  • The absence of petechiae weighs against strangulation.” (P. 038778.) (Emphasis added.)
  • Baker noted that that Floyd had no injury to . . .[his lower buttocks or upper end of Floyd’s thigh which were being held by Kueng].” (P. 038778) (Emphasis added.)
  • Baker noted that there was no relation to Floyd’s cause of death by Lane’s position [on Floyd’s feet].” (P. 038778.) (Emphasis added.)
  • “The struggle between officers and Floyd weighed into Baker’s opinion because physical exertion increases heart rate, releases adrenaline, and increases respiratory rate as well as cardiac demand. All of these things increased the likelihood of a bad outcome.” (P. 038778.)
  • Baker had no opinion on when Floyd became critical or near death.” (P. 038780.) (Emphasis added.)
  • Baker did not believe that the prone position was any more dangerous than other positions based on an article or journal he had read. “ (P. 038780.) (Emphasis added.)
  • Baker could not provide an answer on a ‘but for’ cause [of death]. (P. 038781.) (Emphasis added.)
  • Absent suspicious circumstances, if Floyd had been found dead in his bed with the level of fentanyl in his blood that was present for this autopsy, it may be classified aa fentanyl fatality due to the level of fentanyl.” (P. 039781.) (Emphasis added.)
  • When a death was labeled a homicide, it was not a legal ruling being made. The label was classified as such for public health reasons.” (P. 0388782.) (Emphasis added.)

Parties’ Battle Over Evidence of Defendants’ Prior Incidents[4]

 The State previously had argued for admission of evidence of eight separate incidents involving Chauvin’s actions in the course of his duties as a Minneapolis Police Officer. On November 16 the State submitted a supplemental argument in support of such evidence in light of its obtaining the body worn camera videos for one of those incidents that are relevant to show modus operandi, intent and lack of mistake and rebut any defense of reasonable use of force and that their probative value outweighs any potential unfair prejudice.

Lane’s objection to such evidence was just discussed.

In addition,  Chauvin’s attorney argued that these incidents are inadmissible to show his intent in the Floyd case or his alleged knowledge of the need to move Floyd from the prone position or a common scheme or plan or modus operandi and that evidence of such incidents is cumulative and unfairly prejudicial.

State’s Objection to Evidence of  Floyd’s Prior Incident with Minneapolis Police[5]

All Defendants intend to offer evidence of George Floyd’s May 6, 2019, incident with the Minneapolis Police Department even though the Court at the September 11, 2020, hearing held that such evidence was inadmissible. The State said the Court’s prior decision was correct and that the defendants intend to offer this evidence at trial was for the improper purpose of attacking Floyd’s character and suggesting he had a propensity to commit crimes or should be punished for his prior actions; that the prior incident does not show Floyd’s common scheme or plan in the incident that led to his death; that his state of mind in the prior incident is irrelevant; that the unfair prejudice of evidence of that prior incident far outweighs its probative value and that the defendants’ other arguments for such evidence are unpersuasive.

State’s Objection to Audio and Video Trial Coverage[6]

The State asked the Court for reconsideration of its order for audio and video coverage of the trial. The motion provided no reasons for that motion other than its previous objection to such coverage under Minnesota Rule of Criminal Procedure 4.02(d) and a brief to be filed on or before November 30.

A StarTribune editorial, however, supported this court order. It said, “It is in the best interest of trial participants and the public for this high-profile trial to be as accessible as possible. . . . [Judge] Cahill’s ruling is well-reasoned and fair.”

Reactions

An important reason for the Court’s November 5th order for a joint trial of the four defendants was there was no indication at that stage of the proceedings “that any of the Defendants is likely to be prejudiced by joinder because their defenses are not antagonistic but instead are mutually supportive.” Now, however, Defendant Lane has stated that his  defense will be antagonistic to Chauvin in that Lane will be “pointing the finger” at Chauvin and that if Lane had known of Chauvin’s prior incidents, Lane would have acted differently. This latest statement, therefore, is a serious challenge to the wisdom of a joint trial.

In addition, Lane’s disclosure of the FBI memorandum of its interview of the Hennepin County Medical Examiner, assuming it accurately reflects what the Examiner said, provides boosters for the defense and problems for the prosecution.

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[1] Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing, dwkcommentaries.com (Nov. 5, 2020).

[2]  Defendant’s [Lane’s] Objection to the State’s Spreigl Notice and Motion to Reconsider the Court’s Order for Joinder, State v. Lane, Court File No. 27-CR-20-12951 (Nov. 16, 2020); Exhibit A [FBI Memorandum], Lane Objection to Spreigl and Motion to Reconsider Joinder Order,  State v. Lane, Court File No. 27-CR-20-12951 (Nov. 16, 2020).

[3]  This case was Rosemond v. United States, 572 U.S. 64 (2014), which requires close analysis.

[4]  State’s Supplemental Memorandum of Law in Support of Other Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020); Defendant’s [Chauvin’s] Objection to State’s Proposed Introduction of Spreigl Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020); Defendant’s [Kueng’s]Objection to the State’s 404(b) Evidence, State v. Kueng, Court File No. 27-CR-20-12953 Nov. 16, 2020); Defendant’s [Thao’s] Memorandum in Opposition to State’s Motion for Spreigl Evidence Against Mr. Thao, State v. Thao, Court File No. 27-CR-20-12949 Nov. 16, 2020); Defendant’s [Lane’s] Objection to the State’s Spreigl Notice and Motion to Reconsider the Court’s Order for Joinder, State v. Lane, Court File No. 27-CR-20-12951 (Nov. 16, 2020); Jany, Seeking to show pattern of excessive force by Chauvin, prosecutors cite incident with 14-year-old boy who couldn’t breathe, StarTribune (Nov. 17, 2020);Bailey, Former Minneapolis police officer charged in George Floyd’s death seeks to bar evidence of past neck and body restraints, Wash. Post (Nov. 17, 2020).

[5] State’s Response Opposing Defendants’ Motions To Admit Spreigl Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020).

[6] State’s Motion for Reconsideration, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020) State asks judge to reconsider permission for audio, video coverage of officers’ trial in George Floyd Killing, StarTribune (Nov. 16, 2020); Editorial, A victory for courtroom access in George Floyd case, StarTribune (Nov. 17, 2020).

Prosecution Requests One Trial for the Four Former Policemen Charged with Floyd Killing

On August 12, the prosecution in the four George Floyd murder and manslaughter cases asked  the trial court to consolidate all the cases for one trial, currently scheduled to start on March 8.[1]

Technically this was a motion for joinder of the four cases under Minnesota Rule of Criminal Procedure 17.03, subd. 2, which “when two or more defendants are charged with the same offense,” the court has discretion for them to be tried jointly after considering the following four factors: (i) “the nature of the offense charged;” (ii) “the impact on the victim;” (iii) “the potential prejudice to the defendant;” and (iv) “the interests of justice.”

The brief in support of the motion said, “First, the nature of the offenses supports joinder because of the similarity of the charges and evidence against all four Defendants. Second, the victim-impact factor favors joinder because this factor has been interpreted broadly to include the impact on eyewitnesses and family members who would likely be traumatized by multiple trials. Third, Defendants are unlikely to be prejudiced by joinder because their defenses are not antagonistic. Finally, the interests of justice favor joinder because, among other things, separate trials would cause delay and impose burdens on the State, the Court, and witnesses, and trial-related publicity may compound the difficulty in selecting a jury in subsequent trials. This Court should therefore grant the motion and order the joinder of all four Defendants’ trials.”

For this retired attorney without criminal law experience, this sounds like a very strong argument. The toughest point appears to be whether or not any of the four defendants would be prejudiced by a consolidated trial.

According to the Minnesota Supreme Court, says the prosecution, “the potential prejudice to the defendants—weighs against joinder only if Defendants show that they will present ‘antagonistic defenses’ at trial,” i.e., “when they seek to put the blame on each other and the jury is forced to choose between the defense theories advocated by the defendants.” Moreover, says the prosecution, The Minnesota Supreme Court has identified two narrow categories of cases in which antagonistic defenses are likely to be present;” (1) “where the state introduce[s] evidence that show[s] only one of the defendants killed the  victim, thus forcing each defendant to ’point the finger’ at the other;” and (2) “when the jury is ‘forced to believe the testimony of one defendant or the testimony of the other’ in order to reach a verdict.” Moreover, under Minnesota Supreme court precedents, “arguments about disparate levels of responsibility among the defendants are not enough to render defenses antagonistic.”

Moreover, the prosecution says, “the four defendants are likely to raise common defenses.,” such as the use of force was reasonable or necessary, or that the Defendants’ actions did not cause Floyd’s death.”

The evidence for the motion was provided in exhibits to the Affidavit of Assistant Attorney General Matthew Frank: the body worn camera video of defendants J. Alexander Kueng, Thomas Lane and Tou Thao (Exs. 1-3);[2] copies of the Bureau of Criminal Apprehension interviews of Lane and Thao (Exs. 4 & 5); Minneapolis Police Department’s Policy and Procedure Manual (pertinent portions) (Ex. 6); Hennepin County Medical Examiner Autopsy Report (Ex. 7); Hennepin County Medical Examiner Press release Report (Ex. 8); and Armed Forces Medical Examiner report (Ex. 9).

The defendants’ responses to this motion are due September 8 for the September 11 hearing.

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[1] Xiong, Prosecutors seek permission for one trial for all four former officers charged in George Floyd’s killing, StarTribune (Aug. 12, 2020); State v. Chauvin, State’s Notice of Motion and Motion for Joinder, Court File No. 27-CR-20-12646 (Aug. 12, 2020); State v. Chauvin, Affidavit of Matthew Frank, Court File No. 27-CR-20-12646 (Aug. 12, 2020); State v. Chauvin, Exhibits Attached to Affidavit of Matthew Frank, Court File No. 27-CR-20-12646 (Aug. 12, 2020)(Exhibits 4 and 5 were copies of the Bureau of Criminal Apprehension interviews of former officers Lane and Thao on flash drive, which were not available online); State v. Chauvin, State’s Memorandum in Support of Motion for Joinder, Court File No. 27-CR-20-12646 (Aug. 12, 2020); State v. Chauvin, Scheduling Order, Court File No. 27-CR-20-12646 (Aug. 13, 2020).

[2]  The bodycam video of defendant Thao has not previously been reported. According to the Associated Press, it shows for the first time “the growing horror of nearly a dozen onlookers who repeatedly pleaded with the officers to get off Floyd. One of the bystanders, a black man wearing a Northside Boxing Club sweatshirt yells at Chauvin to ‘”get off his (expletive) neck, Bro” and asks Thao “You gonna keep him like that? “You gonna let him kill that man in front of you, Bro? Bro, he’s not even (expletive) moving right now, Bro.” When a woman who identifies herself as a Minneapolis firefighter arrives, Thao yells at her, ‘Back off!” She, however, persists and asks if the officers have checked the man’s pulse.(Assoc. Press, Ex-Cop’s Video Captures Crowd’s Horror During Floyd Arrest, N.Y. Times (Aug. 13, 2020); Bailey, Owens, Griffiths & Wolfrom, Live updates: New footage released of George Floyd’s fatal encounter with police, Wash. Post (Aug. 13, 2020).)