Derek Chauvin Trial: Court Denies State’s Motion To Amend Sentencing Opinion          

“On July 7, 2021, the State of Minnesota made an unusual request of Hennepin County District Court Judge Peter Cahill: revise its June 25, 2021, Sentencing Memorandum Opinion regarding Derek Chauvin, but not its 22.5 year sentencing order for him. The requested change was to include the presence of children at the scene of George Floyd’s murder as an aggravating factor for sentencing.” (Emphasis added.)[1]

Only six days later, on July 13, Hennepin County District Court Judge Peter Cahill denied this request or motion.[2]

The Judge first noted that the State did “not cite any statues or rules it contends vest this Court with jurisdiction over this case “ at this juncture and did not request or expect any response from Chauvin. (Pp. 1-2.) In other words, there was no legal basis for the State’s request.

Judge Cahill then made the following criticisms of the merits of the State’s request:

  • It ignored the Court’s focus: Chauvin’s conduct toward George Floyd on May 25, 2020.
  • The Court did not find or write in the Sentencing Memorandum Opinion that the four minor eyewitnesses were not traumatized, rather it stated that the trial evidence did not present any objective indicia of trauma.” (Emphasis by Court.)
  • The State failed to exercise its right to a separate contested sentencing hearing on alleged aggravating factors.
  • The State gave lower priority and less attention to the presence of children in its arguments for aggravating factors for sentencing.
  • The Court was not intending “to send a message” of any kind in its sentencing.
  • The Court did not make its sentencing decision on the basis of the racial or ethnic status of any of the observers at the May 25, 2020 scene of the killing of Mr. Floyd or of the three young women and nine-year-old girl observers.
  • The State ignores the law that the court has to find “substantial and compelling reason” why an aggravating factor may call for an aggravated sentence, and cases so involving the presence of children are distinguishable.
  • The court, in accordance with the law, imposed a 22.5 year sentence on Chauvin that was “rational and just, . . helps to promote public safety, . . . reduces sentencing disparity, . . . and is proportional to the severity of the offense and the defendant’s criminal history.

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[1] Derek Chauvin Trial: State Requests Modification of Court’s Sentencing Memorandum, dwkcommentaries.com (July 8, 2021) (emphasis added). /

[2] Oder Denying State’s Request To Modify Sentencing Order Memorandum Opinion, State v. Chauvin, Hennepin County District Court, Court File No. 27-CR-20-12646 (July 13, 2021); Olson, Chauvin judge declines state request to revise memo about young eyewitnesses to Floyd murder, StarTribune (July 13, 2021).

 

Derek Chauvin Trial: State Requests Modification of Court’s Sentencing Opinion

On July 7, 2021, the State of Minnesota made an unusual request of Hennepin County District Court Judge Peter Cahill: revise its June 25, 2021, Sentencing Memorandum Opinion, but not its 22.5 year sentencing order. The requested change was to include the presence of children at the scene of George Floyd’s murder as an aggravating factor for sentencing.

Rationale for the Request[1]

 The State asserted the following two reasons for this request.

First, the Court said, contrary to laws and common sense,” that the children’s presence should not be an aggravating factor because they “were not forcibly held at the scene or otherwise prevented from leaving.”  However, according to the Attorney General, “The Minnesota Supreme Court has clearly stated that an aggravating factor applies when children witness criminal activity.[Emphasis in Ellison letter.]Children lack the adult capacity for decision-making, including the ability to maturely ‘walk away.’ Moreover, the law does not place the burden on a child to choose between staying—whether to stand witness or in an attempt to aid a victim—or leaving the scene of a crime. For good reason: The responsibility of shielding a child from witnessing a crime should not fall on the child. In other words, a child is akin to a victim when she perceives a horrific event—such as murder—without anything more.”

Moreover, the “State is deeply worried about the message sent by suggesting that instead of attempting to intervene in order to stop a crime—which children did in this case—children should simply walk away and ignore their moral compass. Children should never be put in this position.”

Second, “the State vehemently disagrees with the Court’s factual assertion that the demeanor the children exhibited in the video of  Mr. Floyd’s death indicates that the children were not traumatized. The children’s emotional testimony at trial—including that one of them stays awake at night and another cannot return to Cup Foods—belies that conclusion.”

Third, “the best social science research also supports modifying the opinion’s reliance on the children’s demeanor. . .. [It] ignored the facts that the children courageously confronted Mr. Chauvin and his codefendants –by pleading repeatedly for Mr. Chauvin to remove his knee from Mr. Floyd’s neck so that he could breathe, and by begging Mr. Chauvin and his codefendants to check Mr. Floyd’s pulse [and instead] relied on its observation that the children smiled or giggled at various points during the incident. But that observation is completely immaterial: Children process traumatic experiences in ways that may seem unusual to the untrained eye. Moreover, as social science research demonstrates, for humans of all ages, giggling or smiling can actually be normal responses to stressful experiences. Additionally, and particularly relevant here, research demonstrates that ‘adults view Black girls as less innocent and more adult-like that their white peers.’ This phenomenon of ‘adultification’ is unfortunately common in American society, including the criminal justice system, and has led even careful observers to discount a young Black girl’s trauma.”

Support for these references to social science research was provided in the accompanying Declaration (under Penalty of Perjury) of Sarah Yvonne Vinson, an eminently qualified Triple Board-Certified Child & Adolescent, Adult and Forensic Psychiatrist.[2]

Finally while noting the State’s “utmost respect for the Court, including tis tremendous efforts to reduce implicit bias in this trial,,” the State said the Court’s “discounting the trauma of the children who testified at trial—in an authoritative judicial opinion, no less—will only exacerbate the trauma they have suffered. The Court should correct the public record to avoid that result.”

Conclusion

 This blog previously stated its disagreement with the Court’s rejection of the presence of children as an aggravating factor for sentencing.[3]

The Court also failed to acknowledge the judgment and courage of one of the children—17 year-old- Darnella Frazier—in deciding that day to use her cell phone to make a 10-plus minute video recording of the restraint and murder of Mr. Floyd.[4]

Finally, although not relevant to the Court’s opinion, Frazier’s traumatization unfortunately was further exasperated on July 6, 2021, when her innocent uncle (Leneal Lamont Frazier, age 40,) was killed in a car crash involving a Minneapolis police vehicle that was pursuing another vehicle containing a robbery suspect. Darnella said on FACEBOOK, “MINNEAPOLIS police killed my uncle . . . Another Black man lost his life in the hands of the police. Minneapolis police [have] cost my whole family a big loss. . . today has been a day full of heartbreak and sadness.” Later she added the following clarification to that post: “”I never said the police killed him on purpose. I said it was the police’s fault … The police car is the car that killed my uncle.” She wrote that the police made a bad decision by conducting a high-speed chase through a residential neighborhood, and that bad decision “cost my uncle his life.”[5]

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[1] Letter, Minnesota Attorney General Keith Ellison to Judge Peter Cahill, State v. Chauvin, Court File No.: 27-CR-20-12646 (July 7, 2021); Xiong, Attorney General challenges judge’s characterization of  girls’ reactions at Floyd murder scene, StarTribune (July 8, 2021).

[2] Declaration of Sarah Yvonne Vinson, State v. Chauvin, Court File No.: 27-CR-20-12646 (July 7, 2021).

Click to access MCRO_27-CR-20-12646_Other-Document_2021-07-07_20210708080542.pdf

[3] See these posts to dwekcommetaries.com: Derek Chauvin Trial: Week Four (April 2, 2021); Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment,  (June 28, 2021).

[4] See these posts to dwkcommentaries.com: Witnessing (April 25, 2021); Darnella Frazier’s Continued Witnessing (May 26, 2021); More Honors for Darnella Frazier (June 12, 2021).

[5] Hyatt & Miller, Mourners block street where Minneapolis police car crashed into car during pursuit, killing innocent driver, StarTribune (July 8, 2021); Bela, Darnella Frazier says her uncle was killed by a police car that was chasing a robbery suspect, Wash. Post (July 7, 2021).

 

 

Reconsidering Third-Degree Murder Charges Against Other Ex-Policemen in George Floyd Killing 

On June 30, 2021, the Minnesota Court of Appeals reversed  Judge Cahill’s denial of the State’s motion to add a third-degree murder aiding and abetting charge against former MPD officers, J. Alexander Kueng, Thomas Lane and Tou Thao. Their trial is now scheduled for March 2022.[1]

Before looking at this Court of Appeals decision, we will examine a summary of the complicated background for this issue.

Background for Appellate Decision

“Murder in the Third Degree: in the Minnesota Statutes (section 609.195) is defined as “Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.”

The original superseding criminal complaint of June 3, 2020, against Derek Chauvin included a third-degree murder charge while not so charging the other three former officers of aiding and abetting that charge in their original complaints of June 3.[2]

On August 28, 2020, Chauvin moved to dismiss the complaint, including the third-degree murder charge. On October 21, 2020, Judge Cahill granted Chauvin’s motion to dismiss the third-degree murder charge while denying the balance of the motion. According to the Judge, such a charge can be sustained only when “the defendant’s actions . . . were not specifically directed at the particular person whose death occurred.” [3]

On February 4, 2021, the State moved for leave to reinstate the third-degree charges against the former officers. The basis for this motion was the Court of Appeals’ February 4th 2-1 decision upholding a third-degree murder charge against Mohammed Noor for the 2017 killing of an Australian woman in south Minneapolis.[4]

On February 11, Judge Cahill denied this motion to add the third-degree murder charges. According to the Judge, the majority opinion in its recent Noor case “is not persuasive in this Court’s view because it departs from the Minnesota Supreme Court’s long adherence to the no-particular person requirement embedded in the depraved mind element [of the crime].” In addition, said Judge Cahill, the dissent in the Noor case was correct.[5]

On February 22, the State appealed that decision to the Court of Appeals. On March 1 the Court of Appeals heard arguments on that appeal, and on March 5 that court reversed Judge Cahill’s decision. As a result, on March 11, Judge Cahill reinstituted the third-degree murder charge against Chauvin. The Judge said he was “duty bound” to accept the appellate court’s ruling and interpretation of the statute.[6]

Court of Appeals June 30th Decision[7]

The Court of Appeals on June 30, 2021, said that its previous decision on the third-degree murder charge in the Chauvin case requires Judge Cahill to reverse his previous denial of the charge of aiding and abetting such a crime by these three former officers and to hear additional arguments from the parties.

Judge Cahill will be duty-bound to follow this decision and order.

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[1] Xiong, Court of Appeals ruling puts third-degree murder back into play in George Floyd killing, StarTribune (July 1, 2021); Williams, Minnesota appeals court clears way for third-degree murder charge against officers in George Floyd death, The Hill (July 1, 2021).

[2] The Criminal Complaint Against Derek Chauvin Over the Death of George Floyd, dwkcommentaries.com (June 12, 2020); The Criminal Complaints Against the Other Three Policemen Involved in George Floyd’s Death, dwkcommentaries.com (June 14, 2020).

[3] Chauvin Moves To Dismiss Criminal Complaint, dwkcommentareis.com (Sept. 9, 2020); Court Sustains Most Charges in George Floyd Criminal Cases, dwkcommentaries.com (Oct. 23, 2020).

[4] Prosecution and Chauvin Dispute Adding Third-Degree Murder Charges in George Floyd Criminal Case, dwkcommentaries.com (Feb. 10, 2021); Court Denies Third-Degree Murder Charges for George Floyd Killing, dwkcommentaries.com (Feb. 12, 2021).

[5] Ibid.

[6] Comment: State Appeals Dismissal of Third-Degree Murder Charges in George Floyd Case, dwkcommentaries.com (Feb. 23, 2021); Appellate Hearing on Third-Degree Murder Charge Against Derek Chauvin, dwkcommentaries.com (Mar. 1, 2021); Court of Appeals Reverses District Court’s Refusal To Follow Precedent on Third-Degree Murder Charge Against Derek Chauvin, dwkcommentaries.com (Mar. 5, 2021); Derek Chauvin Trial: Week One, dwkcommentaries.com (Mar. 15, 2021)Thomas Lan

[7] See n.1 supra.

 

Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment           

                                                                                                                               On June 25, Hennepin County District Court Judge Peter Cahill entered the following order, “ As to Count I, based on the verdict of the jury finding you guilty of unintentional second-degree murder while committing a felony under Minn. Stat. sec. 609.19, subd. 2(1), it is the judgment of the Court that you now stand convicted of that offense. Pursuant to Minn. Stat. sec. 609.04, Counts II and III remain unadjudicated as they are lesser offenses of Count I.”

Therefore, the “Court commits . . . [Derek Chauvin] to the custody of the Commissioner of Corrections for a period of 270 months [22.5 years]. You are granted credit for 199 days already served.”[1]

With this sentence, the  Minnesota Department of Corrections has said that if Chauvin qualifies by good behavior in prison, he would be released from prison on December 10, 2035, which will be when Chauvin is 59 years old, followed by supervised parole until June 8, 2043.

Court’s Opinion Regarding This Sentence[2]

Judge Cahill first reviewed the Minnesota Sentencing Guidelines, which were promulgated “to establish rational and consistent sentencing standards the promote public safety, reduce sentencing disparity, and ensure that the sanctions imposed . . . are proportional to the severity of the . . . offense and the offender’s criminal history.”  The Guidelines also establish “presumptive ranges” for the offenses and for most cases, the maximum sentence that may be imposed is at the top of that range.

However, the Guidelines also recognize that there are cases when the guidelines may not be appropriate and that a different sentence may be imposed for “substantial and compelling circumstances,” i.e., when the “defendant’s conduct in the offense . . . was significantly more or less serious than that typically involved in the commission of the crime in question.” (Emphasis in original quotation of Minnesota Supreme Court case.)

Here, the presumptive range of a sentence for second-degree murder is 128 to 180 months with a presumptive sentence of 150 months (12.5 years). To deviate from these guidelines, the court (or jury) must find that there were one or more “aggravating factors” in the crime at issue. Here, the court determined that there were two such “aggravating factors”: Chauvin abused a position of trust and authority and Chauvin treated Mr. Floyd with particular cruelty.

Although the court previously had concluded there were two other aggravating factors–children were present during the commission of the crime and Chauvin committed the crime with the active participation of three other former Minneapolis policemen—Judge Cahill for various reasons declined to use them for determining the sentence.

Judge Cahill then sought “to effectuate the Minnesota guidelines policy of reducing sentencing disparity” by examining Minnesota sentences over that last ten years for murder in the second-degree. For all such sentences, 67% were within the presumptive guidelines range while 20% were upward departures and 13% were downward departures. Moreover, the most common aggravated sentence has been 240 months (20 years) while the average aggravated departure for defendants with a zero criminal history score [like Chauvin] was 278.2 month (23.2 years).

Therefore, the court concluded, “Mr. Chauvin, rather than pursuing the MPD mission [to give citizens ‘voice and respect’], treated Mr. Floyd without respect and denied him the dignity owed to all human beings and which he certainly would have extended to a friend or neighbor. In the Court’s view, 270 months, which amounts to an additional ten years over the presumptive 150-month sentence, is the appropriate sentence.” In other words, “In consideration of all the facts presented at trial, this Court’s experience, and the collective experience of the entire Court over the last ten years, the Court finds the appropriate prison sentence for Mr. Chauvin is 270 months.”

This opinion demonstrates Judge Cahill’s careful attention to factual and legal details. The only part that is questionable, in this blogger’s opinion, is his refusal to consider for sentencing his previous conclusion that another aggravating factors was  the presence of children. Compare his previous conclusion on this factors with his stated rationale for not considering it for sentencing:

  • Sentencing conclusion. “Although four young women were present and observed portions of the nine and a half minutes restraint of Mr. Floyd, none was injured or threatened with physical injury so long as they did not interfere; none had been present during the previous police struggle to get Mr. Floyd into a squad car, were free to leave the scene at any time, they did not know any of the officers or Mr. Floyd and at trial did not present any objective indicia of trauma.”
  • Previous conclusion. “Children were present on the sidewalk adjoining Chicago Avenue standing only a few feet from where . . . [Chauvin] and the other officers were restraining George Floyd prone in the street and observed Mr. Floyd being asphyxiated as he begged for his life.. . . Although these four children did not observe all the events, they did observe a substantial portion of the . . .[Chauvin’s] use of force and witnesses the last moments of Mr. Floyd’s life.”

This sentencing conclusion, in this blogger’s opinion, is weak in light of  the trial testimony of then 17-year-old Darnella Frazier: “When I look at George Floyd I look at my dad, I look at my brothers, I look at my cousins, my uncles because they are all Black,” she said. “I have a Black father, I have Black brothers, I have Black friends. I look at them and how it could have been one of them. It’s been nights I’ve stayed up apologizing to George Floyd for not doing more and not physically interacting and not saving his life, it’s not what I should have done it’s what he [Chauvin] should have done.” Another 17-year-old girl testified at trial,  “It was difficult because I felt like there wasn’t really anything I could do. As a bystander I was powerless there, and I was failing to do anything.”

The court’s refusal to consider for sentencing the other aggravating factor of Chauvin’s committing the crime with the assistance of others, however, was justified given the statute’s requirement for sentencing that the others be “offenders,”  which has not yet been established with their trial scheduled for this August

Sentencing Hearing[3]

At the June 25 hearing, before the Court imposed the above sentence, the Court heard victim impact statements from members of the Floyd family (seven-year-old daughter Gianna, brothers Terrance and Philonise and nephew Brandon Williams), and Chauvin’s mother (Carolyn Pawlenty).

Derek Chauvin also made the following statement. “At this time due to some additional legal matters at hand, I’m not able to give a full, formal statement at this time. Briefly though, I do want to give my condolences to the Floyd family. There’s going to be some other information in the future that would be of interest, and I hope things will give you some peace of mind. Thank you.” (Emphases added.)

No further information was provided as to what this future information will be, but the only thing this blogger can think of that would be of some comfort to the Floyd family would be an overall agreement among Chauvin and the federal and Minnesota prosecutors for Chauvin to plead guilty to all charges and to abandon any appeal from this guilty verdict and judgment in exchange for an agreed sentence to a federal detention facility.

In addition, at this hearing, Assistant Minnesota Attorney General Matthew Frank and defense attorney Erik Nelson made short statements in support of their requested sentences (30 years by the State and probation and parole by the defense).

At the conclusion of the hearing, Judge Cahill said the sentence was “not based on public opinion. I am not basing it on any attempt to send any messages. The job of a trial judge is to apply the law to specific facts.”

Court’s Order Denying Two Defendant’s Motions[4]

 On June 24 (the day before the hearing), the Court denied Chauvin’s motions for a new trial and for a Schwartz hearing to investigate the jury’s conduct during the trial.  Those denials followed from the following findings of fact and conclusions of law by the court:

  1. “Defendant has failed to demonstrate that the Court abused its discretion or committed error that Defendant was deprived of his constitutional right to a fair trial.”
  2. “Defendant has failed to demonstrate that the State engaged in prosecutorial misconduct such that Defendant was deprived of his constitutional right to a fair trial.”
  3. “Defendant has failed to establish a prima facie case of juror misconduct or that a juror gave false testimony during voir dire to warrant an evidentiary hearing pursuant to Schwarz v. Minneapolis Suburban Bus Co. . . . [and] State v. Ussee. . . .”

Commentary About the Sentencing[5]

Minnesota Attorney General Keith Ellison. Minnesota Attorney General Keith Ellison in a statement published by the Washington Post said, “Chauvin is one of the few police officers ever convicted of murder for a death on the job. Chauvin’s 22½-year sentence, announced Friday, is one of the longest any police officer in the United States has received in modern times for the death of a civilian.”

“But one exceptional case does not solve the problem. Can this conviction help us finally break the cycle of inaction once and for all?”

“It depends whether we act.”

“Prosecutors must act.”

“Prosecutors must commit to vigorous, visible and swift prosecutions of in-custody deaths when there is probable cause that the use of force was unlawful. They should not be afraid to use all the tools the law puts at their disposal. The visibility of prosecutions, to restore and build credibility with the public, is as important as the vigor employed.”

“The Justice Department must also be a partner in prosecuting cases when local prosecutions fail to win convictions — or fail to act. The Biden administration’s return to conducting investigations into biased policing patterns and practices is also welcome.”

“Prosecutions must also be swift. Chauvin was convicted less than a year after he took Floyd’s life. By contrast, it took four years from the death of Laquan McDonald for Chicago police officer Jason Van Dyke to be convicted. We cannot possibly build public trust if we allow prosecutions to take this long.”

“Lawmakers must act.”

“Congress must pass the strongest version of the George Floyd Justice in Policing Act it can pass. Don’t wait for the perfect bill when a meaningful first step is within reach. Remember: the Voting Rights Act of 1965 and the Fair Housing Act of 1968 were passed after the Civil Rights Act of 1964. Enduring, systemic change takes time.”

“At the state level, legislatures should authorize attorneys general to conduct investigations into local law enforcement to bring to light any persistent patterns of misconduct within a given police department. State-based pattern-or-practice investigations — which critically involve both community members and police officers — have proved successful. If states don’t do that, Congress should make it possible for attorneys general to rely on federal authority to conduct these investigations.”

“City councils and county boards must support reform-minded law enforcement leaders and, if necessary, use the power of the purse to compel reform by directing money toward progressive training and holding leadership accountable for outcomes. We must also recognize that, too often, we ask police officers to solve problems they are neither trained nor intended to solve. We must provide people in crisis with comprehensive social services that law enforcement cannot provide, and we must also support officer wellness.”

“Law enforcement must act.”

“Police leadership must be empowered to take meaningful action. Rather than punishing good officers who call out their colleagues’ bad behavior, as sometimes occurs, police departments should celebrate them and commend their service.”

“The Chauvin trial produced some remarkable, even astonishing, moments, with multiple police officers testifying for the prosecution, and with the police chief, in full uniform, testifying that the defendant’s behavior was not a reasonable use of force in line with department policy. Such testimony should become commonplace, not remain a rarity.”’

“This isn’t about creating a culture of ‘snitching” — it’s about creating a culture of accountability that sets and enforces clear professional standards that protect both police officers and community members.”

“Finally, communities must act.”

“It is imperative that communities keep up the pressure for reform and accountability, and finally end the cycle of inaction. My office could not have led the prosecution of Chauvin without the help of ordinary people who courageously bore witness to Floyd’s death, and the pressure from a community that demanded accountability and action.”

President Joe Biden. At the White House on June 25, President Biden responded to a reporter’s question about the sentencing with this comment: “I don’t know all the circumstances that were considered but it seems to me, under the guidelines, that seems to be appropriate.”

Washington Post Editorial. An editorial in the Washington Post said Chauvin’s conviction and sentencing “should bring a measure of satisfaction that justice was served and assure Americans that the system is not hopelessly broken.”

But more broadly , “Policing in the United States could be more effective and less threatening to minority communities. Officers who commit wrongdoings could face more certain punishments. Floyd’s death last spring appeared to spur a reckoning on U.S. policing, but that momentum has slowed in recent months.”

For example, a bipartisan criminal justice reform bill so far has failed to pass in the U.S. Congress. The House of Representatives in March passed a sweeping police reform bill, but Republican opposition in the Senate appears to doom that bill.

Experts’ Reactions. Although the Chauvin case could lead to better police hiring and training, more trust between police and communities and make the public and future jurors more reception to complaints about police interactions with minorities, this case “ doesn’t address deep-rooted issues of race and violence affecting police interactions with minorities [and does not] . . . result in charges or convictions against officers, according to Sheila A.Bedi, a professor at Northwestern University’s Pritzker School of Law, Director of its Community Justice & Civil Rights Clinic and an attorney in use-of-force lawsuits against the Chicago Police Department.

Another professor of criminal justice, Philip Stinson of Bowling Green State University, pointed out that since 2005 only 11 non-federal law officers, including Chauvin, have been convicted of murder for on-duty conduct, the nine who were sentenced before Chauvin received sentences ranging from six years to life behind bars with the median being 15 years.

Floyd Family Attorney’s Reaction. Ben Crump, the attorney for the Floyd family, called for a federal conviction of Chauvin that might lead to a longer sentence.

Conclusion

We now wait to see the results of any appeal of this conviction and sentencing by Chauvin; the results of the August trial of the other three ex-officers in state court and any subsequent appeals; developments in the federal court criminal cases against the four ex-policemen; and the details of any guilty plea agreements by any or all of the four men.[6]

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[1] Sentencing Order and Memorandum Opinion, State v. Chauvin, Hennepin County District Court, Dist. Ct. , File No. 27-CR-20-12646 (June 25, 2021); Derek Chauvin Trial:  Week Seven (Conviction), dwkcommentaries.com (April 21, 2021).

[2] Ibid; Derek Chauvin Trial: Week Four, dwkcommentaries.com (April 2, 2021). Derek Chauvin Trial: Court finds Aggravating Factors for Sentencing, dwkcommentaries.com (May 12, 2021); Derek Chauvin Trial: Arguments About Sentencing of Chauvin, dwkcommentaries.com (June 7, 2021); Derek Chauvin Trial: Issues for Sentencing, dwkcommentaries.com (June 18, 2021);

[3] Olson, Xioing & Walsh, Chauvin Sentenced to 22 ½ years for the murder of George Floyd, StarTribune (June 26, 2021).

[4] State v. Chauvin, Hennepin County District Court, Dist. Ct. File 27-CR-20-12646 (June 24, 2021); AP. Judge rejects Chauvin request for new trial in Floyd death, Wash. Post (June 25, 2021); Xiong, Former officer Derek Chauvin faces sentencing Friday afternoon; judge denies defense motion for new trial, StarTribune (June 25, 2021); Derek Chauvin Trial: Defendant’s Motion for New Trial and Impeachment of Verdict, dwkcommentaries.com (May 5 2021).

[5]  Ellison, Opinion: Derek Chauvin is going to prison. Let this be a turning point, Wash. Post (June 26, 2021); Goodnough, Biden calls long prison sentence for Derek Chauvin ‘appropriate,’ N.Y. Times (June 25, 2021); Editorial, Opinion: Derek Chauvin is headed to prison. But that is not enough, Wash. Post (June 25, 2021); Webber (AP), Experts: Impact of Chauvin case on policing yet to be seen, Wash. Post (June 26, 2021); Assoc. Press, Floyd family lawyer calls for federal conviction for Chauvin, Wash. Post (June 25, 2021).

[6] This blog has covered all of the details in these cases and intends to continue doing so. (See List of Posts to dwkcommentaries—Topical: George Floyd Killing.

Derek Chauvin Trial: Arguments About Sentencing of Chauvin

On June 2, the State and Derek Chauvin submitted vastly different briefs about the appropriate sentence for his conviction for second- and third-degree murder and second-degree manslaughter. The State argued for 30 years imprisonment while Chauvin asked for time already served and probation. [1]

The State’s Argument for 30 Year Sentence  [2]

The State’s argument for a 30-year sentence was based upon the trial court’s already having decided that there are “beyond a reasonable doubt” four separate aggravating factors in  Chauvin’s] killing of George Floyd: () Chauvin “abused a position of trust and authority” as a police officer; (2) he “treated George Floyd “with particular cruelty;” (3) Chauvin “acted in concert with three other  .. . [officers], who all actively participated in the creimes;” and (4) children were present when Floyd was pinned to the pavement at 38th and Chicago for more than 9 minutes until he died. (Pp. 1-2.)

In reliance upon Minnesota Supreme Court decisions, the State argued that “each of these factors supplies a “substantial and compelling reason’ for imposing an aggravated sentence” and that “where one or more aggravating factors are present, the district court can impose a sentence up to ‘double the upper limit of the presumptive range.’” This is especially true in this case when the court has concluded that Chauvin’s abuse of his position of trust and authority was “egregious and that multiple aspects of his conduct were ‘particularly cruel.” (Pp. 1-2.)

Here, the “presumptive sentencing range . . . [for Chauvin’s] conviction for . . . second-degree unintentional murder, [which is the  most serious of the crimes for which Chauvin was convicted] is 128 to 180 months. The State therefore respectfully request that the court sentence . . . [Chauvin] to 360 months, or 30 years, in prison.” (P. 3.)

In addition, the State took no position “at this time” on the recommendation in the pre-sentence investigation report that Chauvin pay restitution in an amount to be determined by the Court, but reserved the right to address restitution at the sentencing hearing or thereafter. (P. 21, footnote 7.).

Chauvin’s Argument for Mitigated Departure  and Sentencing [3]

First, Chauvin argued for a discretionary downward departure and a sentence for a “stringent probationary term.” This departure purportedly was justified by the following alleged facts (pp. 4-10):

  • Chauvin was 44 years old at the time of his encounter with George Floyd and his having led “a hard-working, law-abiding life . . .[his not having experienced] a legal issue,  [his still having] the ability to positively affect his family and his community” and the likelihood as a former police officer of his  “becoming a target in prison” by other inmates.
  • “Chauvin has a criminal history of zero [with] no previous convictions for felony, gross misdemeanor, or misdemeanor offenses.” Moreover, “prior to his conviction, [he] complied with all the terms of the Court’s release orders and made every court appearance.”
  • ”Chauvin has been very respectful of the judicial process, the Court, and the State;” upon learning that a complaint and warrant had been issued for him, he turned himself into custody; [after being released on bail, he] remained out-of-custody, attended all court appearances, was never unruly, was properly dressed for court, and was deferential to the Court under all circumstances.” He thereby “established that he is particularly amenable to probation.”
  • Before “this incident” occurred, Chauvin was an average man with a loving family and close friends, and he still has such close relationships. “He has the support of his mother, stepfather, father, stepmother, and sister [and his] ex-wife, her family and his former stepchildren.”
  • Chauvin has demonstrated that he is amenable to probation and will be an asset to the community.

Second, these same alleged facts also support Chauvin’s alternative request for a  durational  downward departure for his sentence as do the following additional factors (Pp. 10-12):

  • “Chauvin was unaware that he was even committing a crime.[ Instead,] in his mind, he was simply performing his lawful duty in assisting other officers in the arrest of George Floyd.” Chauvin’s “offense is best described as an error made in good faith reliance [on] his experience as a police officer and the training he had received—not intentional commission of an illegal act.”
  • Chauvin did not use “a dangerous weapon” and “did not intend to cause George Floyd’s death.”

Third, Chauvin argued that an aggravated upward departure was unwarranted for the following reasons (pp. 12-16):

  • “There is no evidence that the assault perpetrated by Mr. Chauvin against Mr. Floyd involved a gratuitous infliction of pain or cruelty not usually associated with the commission of such an offense.” This assault “occurred in the course of a very short time, involved no threats or taunting, such as putting a gun to his head and pulling the trigger. . . and ended when EMS finally responded to officers’’ calls.”
  • The officers twice called for medical assistance and Chauvin remained on scene until it arrived.
  • “The defense is aware of no caselaw in Minnesota . . in which a peace officer’s position has been considered an aggravating factor for an upward departure in sentencing.”
  • None of the codefendants has been convicted of a crime related to the crimes of which Chauvin has been convicted.
  • “The defense is unaware of any case in Minnesota in which the presence of children factor has been considered in a bystander-witness situation where the children, themselves, were not placed in danger.”

Conclusion

 The State’s argument for a 30-year sentence was persuasive, given the court’s prior determination that there were four factors favoring upward sentencing departure.

Chauvin’s argument, on the other hand, was ridiculous in claiming the right to probation or downward departure in the length of any sentenced imprisonment, given the trial record and his conviction of all three counts by a jury.  Here are some additional reasons for that reaction.

First, Chauvin did not testify at trial, and there were no purported evidentiary bases asserted for his sentencing argument.

Second, many people who were interviewed about Chauvin by the New York Times said Chauvin “did his job as if he were playing a role—a tough Dirty Harry on the lookout for bad guys … [and] seemed to operate at an emotional distance from those around him. [He] was a quiet and rigid workaholic with poor people skills and a tendency to overreact—with intoxicated people especially .” [4]

Third, Chauvin ‘s record as a MPD policeman for 19 years includes 22 complaints that many people believe should have raised alarm in the MPD and triggered a general review.[5]

Fourth, In the state criminal case, in which the jury concluded that Chauvin was guilty of all three charges—second- and third-degree murder and second-degree manslaughter–the prosecution requested court permission for admitting into evidence eight of the previous MPD complaints against Chauvin for his actions as a policeman, and the court granted permission for evidence of one such incident on June 25, 2017 and provisional permission for another on August 25, 2015 if there was “clear and convincing evidence that Chauvin was present when a medical professional made certain remarks.” [6]

Fifth, the previously mentioned June 25, 2017 MPD complaint against Chauvin recently has been asserted in a separate federal grand jury indictment of Chauvin in the Minneapolis federal court. It alleges that in this instance Chauvin deprived a 14-year-old boy of his civil rights by pinning him down, striking him on the head with Chauvin’s flashlight and grabbing him by the throat and hitting him again.[7]

Sixth, another troublesome Chauvin incident that took place only three weeks before the killing of George Floyd was his takedown of another Black man (Adrian Drakeford) in a manner very similar to the takedown of Floyd that was videotaped by the man’s brother. Drakeford was not involved in any suspected crime and was released without charges and without any complaint against Chauvin and his colleagues (J. Alexander Kueng and Thomas Lane). [8]

Seventh, the Floyd family’s complaint in a federal-court civil lawsuit for money damages against the City of Minneapolis, Chauvin (and his three colleagues) alleged that Chauvin was the subject of 17 citizen complaints from 2006 to 2015, that Chauvin as a policeman participated in the shooting and killing of three individuals and in 2005 engaged in a reckless police chase resulting in the deaths of three individuals. On March 12, 2021, in the midst of the state court trial of Chauvin, the City of Minneapolis announced its agreement to settle this case with a payment of $27 million to the Floyd family.[9]

Eighth, only a few days after Mr. Floyd’s death, Chauvin and his then-wife reached an agreement for divorce that would transfer the bulk of his assets to her and thereby presumably protect those assets from any attempt by the Floyd family to seize them to collect a future money judgment against Chauvin.  However, a Minnesota state court found that divorce agreement to be fraudulent and that the court subsequently subsequently approved that agreement only after there were major changes. This interpretation of the proposed divorce agreement is also supported by Chauvin’s claim in his sentencing brief that he “is still supported by his ex-wife, her family, and his former stepchildren.”([10]

Ninth, Chauvin and his-then wife in July 2020 were charged with criminal tax fraud by the State of Minnesota for failure to report over $460,000 of Minnesota income since 2014 resulting in illegal failure to pay over $20,000 of Minnesota taxes. [11]

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

[1] Xiong, Chauvin attorney argues for probation instead of prison time for George Floyd murder, StarTribune (June 2, 2021); Forliti (AP), State seeks 30 years for Chauvin; defense want time served, Wash. Post (June 2, 2021).

[2] State’s Memorandum of Law on Sentencing, State v. Chauvin, Hennepin County District Court File No.: 27-CR-20-12646 (June 2, 2021); Derek Chauvin Trial: Court Finds Aggravating Factors for Sentencing, dwkcommentaries.com (May 12, 2021).

[3] Defendant’s Motions for Mitigated Departure and Sentencing Memorandum, State v. Chauvin, Hennepin County District Court File No.: 27-CR-20-12646 (June 2, 2021).

[4]  See these posts to dwkcommentaries.com: Ex-Cop Derek Chauvin: An Enigma in Blue (Aug. 9, 2020); Derek Chauvin’s Policing Background (July 20, 2021); Comment: Journalist’s Report on Derek Chauvin’s Prior Instances of Alleged Abuses (Feb. 2, 2021); https://dwkcommentaries.com/2020/07/20/derek-chauvins-policing-background/Comment: Video of Another Chauvin-Led Takedown of Black Man (Feb. 9, 2021).

[5]  See n. 4.

[6] See these posts to dwkcommentaries.com: Evidentiary Rulings and Request for Delay in Chauvin’s Expert Report in George Floyd Criminal Cases (Jan. 26, 2021); Comment: Journalist’s Report on Derek Chauvin’s Prior Incidents of Alleged Abuses (Feb. 2, 2021).

[7] Federal Court Charges Against Ex-Minneapolis Policemen Over George Floyd’s Killing, dwkcommentaries.com (May 7, 2021).

[8]  Comment: Video of Another Chauvin-Led Takedown of Black Man, dwkcommentaries.com (Feb. 3, 2021).

[9]  See thees posts to dwkcommentaries.com: George Floyd Family’s Complaint Against the Four Ex-Police Officers Over His Death, (July 17, 2020); Derek Chauvin Trial: Week One, (Mar. 15, 2021); Derek Chauvin Trial: Week Two, (Mar. 21, 2021).

[10] See these posts to dwkcommentaries.com: Derek Chauvin’s Wife’s Divorce Petition Raises Questions, (July 8, 2020);  State Court Rejects Chauvin Divorce Settlement,(Nov. 20, 2020); Complications in Derek Chauvin’s Divorce Case,(January 20, 2021); Comment: Court Approves Redacted Chauvin Divorce Agreement, (Feb. 4, 2021)

[11]  Chauvin and Wife Now Charged with Minnesota Tax Crimes, dwkcommentaries.com (July 22, 2020).

 

 

Developments in State Criminal Cases for George Floyd Killing

 There have been four recent developments in the state criminal cases over the killing of George Floyd: (a) the state trial court’s delaying the criminal trial of the other three defendants (Thomas Lane, J. Alexander Kueng and Tou Thao); (b) conducting a hearing on Lane’s motion for discovery of certain use-of-force reports by the Minneapolis Police Department; (c) conducting a hearing on motions for sanctions for alleged leak of alleged Chauvin offer to plead guilty; and (d) Thao’s motion for sanctions for alleged illegal pressure on Hennepin County Medical Examiner.

Delay of Trial [1]

At the May 13 pretrial hearing in the three cases, Judge Peter Cahill announced that the trial would be delayed from August 25, 2021 to March 7, 2022. The Judge gave three reasons for this postponement: (a) provide time for the Judge to deal with pending issues in the cases; (b) provide time for the recently filed federal criminal case against all four ex-officers to proceed since it carries higher potential penalties; [2] and (c) provide time for the publicity about the trial and conviction of Derek Chauvin to diminish.

The three defendants favored the postponement. The State did not .

Nekima Levy Armstrong, a lawyer and prominent civil rights activist in Minneapolis, did not approve of this postponement. She said, “I think we they should have just moved forward. I don’t think it helps our community in a positive way to have to wait about another year.”

Lane’s Motion for Discovery [3]

Previously Lane had requested the State to disclose all use-of-force reports for the last 30 years in which a Minneapolis police officer intervened verbally or physically against another officer’s use of force and the State objected. Lane’s attorney believes there are no such reports and thus discredit the aiding and abetting charges against Lane (and the other two ex-officers )for not intervening to stop Chauvin’s restraint of George Floyd.

Matthew Frank for the State argued that the request was overly broad and should be denied. ts brief stated, that Lane had “not established how the intentions and actions of individual police officers in past years in other incidents would be admissible to impeach testimony about the objectively reasonable officer standard. His failure to address the factual or legal standards necessary to this motion highlight that this is not a serious discovery motion, but simply an attempt to usurp the Court’s time and resources so counsel for Defendant Lane can obtain a public forum to argue his theory of the case. His motion should be summarily denied.”

The Judge said he would take the motion under advisement and later issue an order on the motion.

Three Co-Defendants Motion for Sanctions [4]

The three co-defendants (Lane, Kueng and Thao) have alleged that the prosecution leaked to the New York Times an alleged offer by Chauvin to plead guilty to third -degree murder only three days after the killing of Mr. Floyd.[5]

At the May 13th  hearing, this subject was raised when the three co-defendants asked for the prosecutors to testify under oath or submit affidavits that they did not leak this information, and Judge Cahill revealed that shortly after publication of the Times article he had asked the prosecutors to do just that, but only one such affidavit was provided (by Matthew Frank) while Attorney General Ellison submitted a letter (not under oath) that the prosecution team was not the source.

Judge Cahill tentatively scheduled an August hearing on this matter, and one of the co-defendants’ attorneys said he would subpoena prosecutors who had not submitted affidavits as well as the New York Times reporter for the article (Tim Arango) even though Judge Cahill expressed concern about a subpoena to the journalist in light of his First Amendment protections. (Indeed, the New York Times subsequently stated that it “will vigorously defend against any effort to target our reporters and their sources.”

Thao’s Motion for Sanctions [6]

On March 12 attorneys for Tou Thao filed a motion for sanctions for alleged prosecutorial misconduct in allegedly (a) having Dr. Roger Mitchell, a former Chief Medical Examiner for Washington, D.C., pressure Dr. Andrew Baker, the Hennepin County Medical Examiner, to change his preliminary findings of “no physical findings [supporting] a diagnosis of traumatic asphyxia or strangulation” to the final findings of “neck compression;” and (b) after Chauvin’s chief medical expert (Dr. Fowler) testified that in his opinion the cause of death was undetermined, Dr. Mitchell wrote to Maryland officials to investigate Dr. Fowler’s qualifications and such an investigation was commenced by the Maryland Attorney General.

The motion then requested an order (a) dismissing the criminal charges against Thao; (b) barring seven attorneys (Including Attorney General Ellison and Neal Katyal) from participating in any trial against Thao; (c) asserting complaints about these attorneys to their professional responsibility authorities; and (d) requiring the State to report Dr. Mitchell to the appropriate medical boards.

The same day (May 12) Minnesota Assistant Attorney General Matthew Frank sent a letter to the Judge, saying that this motion asserted, “Bizarre allegations . . . [that] are false and wrong” and that the State requested one week to file a response to the motion.

Conclusion

The issues keep coming.

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

[1] Xiong, State trial postponed to March 2022 for ex-officers charged with aiding and abetting murder in George Floyd death, StarTribune (May 13, 2021); Furber, Judge Delays Trial for Other Officers Charged in Killing of George Floyd, N.Y. Times (May 13, 2021); Bailey, Trial for 3 former officers charged in George Floyd’s murder delayed until March, Wash. Post (May 13, 2021); Karnowski & Forliti (AP), Trial for 3 ex-cops charged in Floyd’s death pushed to March, Wash. Post (May 13, 2021); Winter, Judge Delays trial in George Floyd Case, W.S.J. (May 13, 2021).

[2] See Federal Criminal Charges Against Ex-Minneapolis Policemen Over George Floyd Killing, dwkcommentaries.com (May 7, 2021).

[3] See n.1 supra. See also State’s Response to Defendant Lane’s February 10, 2021 Discovery Motion, State v. Lane, Hennepin County District Court, Case No. 27-CR-20-12951 (May 11, 2021).

[4] See n. 1 supra.

[5] See n. 1 supra; Did Derek Chauvin Agree to Plead Guilty to Third-Degree Murder for Killing George Floyd, dwkcommentaries.com (Feb. 11, 2021).

[6] See n. 1 supra. See also  Motion for Sanctions for Prosecutorial Misconduct Stemming from Witness Coercion, State v. Thao, Court File No. 27-CR-20-12949, Hennepin County District Court May 12, 2021), https://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12949-TT/NOMM05122021.pdf; Letter, Matthew Frank (Assistant Attorney General) to Judge Cahill, State v. Thao, Court File No. 27-CR-20-12949, Hennepin County District Court May 12, 2021).. https://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12949-TT/Correspondence05122021.pdf.

 

 

 

Derek Chauvin Trial: Court Finds Aggravating Factors for Sentencing

On May 11, Judge Peter Cahill issued an opinion finding that there are “beyond a reasonable doubt” four  aggravating factors in the killing of George Floyd last year that clear the way to sentence Derek Chauvin, the fired Minneapolis police officer,to a prison term above state guidelines. [1]

These factors are the following: (1) Chauvin “abused a position of trust and authority” as a police officer; (2) he “treated George Floyd with particular cruelty;” (3) children were present when Floyd was pinned to the pavement at 38th and Chicago for more than 9 minutes until he died; and (4) Chauvin committed the crime with “active participation” of others, namely three fellow officers.

Under Minnesota law, even though Chauvin was convicted on all three counts—second and third degree murder and second degree manslaughter—he may be sentenced only on the most serious charge (second-degree murder) because all charges stem from one act carried out against one person.  Although second-degree murder has a maximum of sentence of 40 years. the practical maximum, say legal experts, is 30 years even with the above aggravating factors.

These legal conclusions come from a 1981 Minnesota Supreme Court case (State v. Evans), which held that generally when an upward departure is justified “the upper limit will be double the presumptive sentence length,” which for someone like Chauvin with no criminal record would be 12 and ½ years.

Ted Sampsell-Jones, a professor at the Mitchell Hamline School of Law and an appellate criminal defense attorney, added that with such a maximum sentence, the  first 20 years would be served in prison and the balance on supervised release, if Chauvin qualifies.

The actual sentencing of Chauvin is scheduled for June 25.

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

[1] Verdict and Findings of Fact Regarding Aggravated Sentencing Factors, State V. Chauvin, Court fFle No. 27-CR-20-12646, Hennepin County District Court, May 11, 2021), https://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12646/Order05112021.pdf; Walsh, Judge backs most aggravating factors in Chauvin trial, clearing way for longer prison term, StarTribune (May 12, 2021); Ferliti (AP), EXPLAINER: How will judge’s ruling affect Chauvin sentence?, Wash. Post (May 12, 2021); Eligon, Chauvin May Face Longer Sentence Over ‘Cruel’ Actions and Abuse of Power, N.Y. Times (May 12, 2021).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Derek Chauvin Trial: Week One

March 8-12 marked the first week of the criminal trail of Derek Chauvin, the former Minneapolis police officer accused of second-degree murder and second-degree manslaughter for the death of George Floyd. This recap will open with the trial court’s reinstatement of the third-degree murder charge and then discuss the parties selection of 14 jurors, two of whom would be alternates. Then this recap will conclude with the March 12th announcement that the City of Minneapolis had reached an historic settlement agreement with the Floyd family over its civil claims for damages, which may have an impact on the Chauvin  and the other criminal cases against the other ex-police officers accused of aiding and abetting Chauvin’s alleged crimes.

Reinstatement of Third-Degree Murder Charge [1]

On March 11, Hennepin County District Court Judge Peter Cahill decided that the third-degree murder charge would be reinstated after the Minnesota Court of Appeals had rebuked his previous refusal to follow the majority opinion of a three-judge panel of that appellate court’s upholding the third-degree murder conviction of another former Minneapolis policeman, Mohammed Noor. 

Judge Cahill said he was “duty bound” to accept the appellate court’s ruling and its interpretation of the relevant statute as covering “single acts directed at a single person.” Moreover, “it would be an abuse of discretion not to grant the motion” to reinstate the charge.

Rachel Paulose, former U.S. Attorney for the District of Minnesota and now a professor at the University of St. Thomas Law School in Minneapolis, says the prosecution correctly asserted this charge since Chauvin threatened to harm witnesses who attempted to intervene to provide medical help to Floyd in addition to the harm to Floyd caused by the chokehold on the latter’s neck. Nevertheless, this additional charge carries the risk that the Minnesota Supreme Court in the pending case of the third-degree murder conviction of another former Minneapolis policeman, Mohammed Noor, might interpret this crime’s requirements more narrowly and enable Chauvin to escape criminal liability if this is the only charge on which he is held guilty at trial.

Minnesota Standards for Potential Jurors [2]

Minnesota Rule of Criminal Procedure 26.02, subd. 1 provides that a county’s jury list shall be “composed of persons randomly selected for a fair cross-section of qualified county residents.”

Rule 26.02, sub. 5(1) then provides 11 specified grounds for challenging a potential juror “for cause.” The most relevant one for the Chauvin trial appears to be “1. The juror’s state of mine—in reference to the case or to either party—satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the challenging party.” Subd. 5 (3) then goes on to say, “If a party objects to the challenge for cause, the court must determinate the challenge.” 

First Week of Chauvin Jury Selection [3]

In preparation for the task of selecting jurors in such a case of wide importance and publicity, the trial court earlier had submitted to potential jurors a 14-page questionnaire with questions about race, policing, martial arts and podcasts.” That court also had determined that Chauvin would have 15 preemptory challenges (8 of which were used this week); the prosecution, only 9 (five of which were used this week).

By the end of the week, seven people had been selected for this jury, five men and two women. Four are white and three are people of color: one black man in his 30’s, one biracial woman in her 20’s, one Hispanic man in his 20’s, one white woman in her 50’s, a white man in his 20’s and two white men in their 30’s. Six of them said they held “a somewhat favorable view of the Black Lives Matter  movement” although some said that view was more for its concept, not its tactics or politics. A jury consultant said “asking about Black Lives Matter and Blue Lives Matter gave lawyers a concrete way to frame conversations about otherwise uncomfortable topics.”

According to Wall Street Journal reporters, during this first week lawyers for both sides “often focused their questioning on Black Lives Matter, Blue Lives Matter and how jurors answered . . . [the court’s] questionnaire answered a questionable item about ‘defunding the Minneapolis Police Department.” This was seen by the reporters as the lawyers attempting to discern “whether potential jurors can put aside their personal opinions while evaluating evidence presented in court—though lawyers haven’t always been swayed by such pledges.”

The founder and chief organizer of Black Lives Matter Minnesota told the Wall Street Journal that he was encouraged that some of initial seven jurors held a positive view of this group while disappointed that the only black individual chosen so far was an immigrant who came to the U.S. more than a decade ago, rather than someone whose ancestors “went through slavery, Jim Crow and the Civil Rights era and who understands the history of our relationship with the police.”

Another issue arose this week over “spark of life” testimony allowed by a Minnesota statute to humanize the deceased victim. The Judge said that he would allow such witnesses to speak about how much they loved Mr. Floyd, but that if they started talking about his character,, it would “open the door’ for the defense to introduce evidence of his criminal history, which so far has been barred by the court.

As someone who only watched a few minutes of the questioning of the prospective jurors (the process of voire dire) and who saw only the questioning by Chauvin’s attorney, Eric Nelson, this blogger was impressed by his logical and conversational tone and maintenance of a straight face and thought that the prospective jurors probably would believe he was someone who deserved to be listened too during the trial. (After retiring from the practice of law, I was summoned for jury duty and was once a potential juror in a civil case who was very annoyed with the manner of one of the attorneys posing questions to the panel; I was eliminated as a juror as I expected because very few, if any, trial lawyers would want to have a lawyer as a juror.)

Settlement Between City of Minneapolis & Floyd Family [4]

On Friday, March 12, Minneapolis city officials and lawyers for the Floyd family publicly announced that they had agreed to settle the latter’s civil lawsuit for money damages with the city’s payment of $27 million.

Mayor Jacob Frey called it a milestone for the city’s future and a reflection of “a shared commitment to advancing racial justice and a sustained push for progress.” Indeed, Frey said the city would implement major policy changes in the pursuit of racial justice. The city’s coordinator, Mark Ruff, added that with cash reserves, officials were confident that this agreement would not lead to an increase of the city’s property taxes.

Ben Crump, the lead lawyer for the family said it would set an example for other communities: “After the eyes of the world rested on Minneapolis in its darkest hour, now the city can be a beacon of hope and light and change for cities across America and across the globe.” Crump also said that this settlement “sends a powerful message that Black lives do matter and police brutality against people of color must end.” the family had pledged to donate $500,000 of the settlement to “lift up” the neighborhood around the site of the killing of Mr. Floyd. And Floyd’s brother pledged to use some of the money to help other struggling Black communities.

Some commentators thought this agreement might make it even harder to seat an impartial jury. A former city chief public defender thought the timing of this agreement “could hardly be worse” for the criminal case against Chauvin and his lawyers might even ask for a mistrial if potential or already chosen jurors saw the agreement as the city’s acknowledgment that his actions were inappropriate.

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[1] Paulose, Opinion: The third-degree murder charges against Derek Chauvin carry worthwhile risks, Wash. Post (Mar. 12, 2021); Bogel-Burroughs, Derek Chauvin will now face a third-degree murder charge, N.Y. Times (Mar. 11, 2021); Court of Appeals Reverses District Court’s Refusal To Follow Precedent on third-Degree Murder Charge Against Derek Chauvin, dwkcommentaries.com (Mar. 5, 2021).  Derek Chauvin again charged with third-degree murder, StarTribune (Mar.  11, 2021); Bailey, Derek Chauvin trial judge reinstates third-degree murder charge in the death of George Floyd, Wash. Post (Mar. 11, 2021)

[2] Minn. Rules of Criminal Procedure 26.02, subdivisions 1, 2(3), 5(1), 5(3);Court’s Questionnaire for Prospective Jurors in George Floyd Criminal Cases, dwkcommentaries.com (Dec. 23, 2020).

[3] Dewan & Arango, What Are the Question for Potential Jurors in the Derek Chauvin Trial?, N.Y. Times (Mar. 7 & 11, 2021);  Levinson, Jury selection begins in Derek Chauvin’s trial in the death of George Floyd. Here’s what to expect, CNN.com (Mar. 11, 2021); Xiong & Walsh, StarTribune (Mar. 12, 2021); Bailey, Hints of strategy and new revelations in first week of Derek Chauvin murder trial, Wash. Post (Mar. 15, 2021).

[4] Bogel-Burroughs & Eligon, George Floyd’s Family Settles Suit Against Minneapolis for $27 Million, N.Y. Times (Mar. 12, 2021); Bailey & Olorunnipa, George Floyd’s family to receive recored $27 million in settlement approved by Minneapolis city council, Wash. Post (Mar. 12, 2021); Barrett & Winter,George Floyd Family Reaches $27 Million Settlement with Minneapolis, W.S.J. (Mar. 12, 2021). Here are summaries of the federal civil complaint by the Floyd family against the City of Minneapolis from dwkcommentaries.com: George Floyd’s Family Sues City of Minneapolis and Four Ex-Officers Involved in His Death (July 16, 2020); George Floyd Family’s Complaint Against City of Minneapolis Over His Death: Count II (July 18, 2020); George Floyd Family’s Complaint Against City of Minneapolis Over His Death: Count III (July 19, 2020).

Court’s Questionnaire for Prospective Jurors in George Floyd Criminal Cases

On December 22, the Hennepin County District Court published its 14-page Special Juror Questionnaire for the joint trial of the four former Minneapolis policemen involved in the George Floyd killing on May 25th.[1]

The Questionnaire starts with an instruction to “answer all of the questions as completely and honestly as you can” and if “some of your past experiences would be particularly sensitive, traumatic, or embarrassing” mark them PRIVATE , and the judge will consider them “as privately as possible.”

“PART I. KNOWLEDGE OF THE CASE”

The first question is, “What do you know about this case from media reports?” That is followed by eight more questions about the Floyd case and Floyd demonstrations. Questions 2 and 3 ask about “general impressions of the defendants” and Floyd with six options (“Very negative, Somewhat negative, Neutral, Somewhat positive, Very positive, Other”). Each of these two questions is followed by “Why do you feel that way?”

Question 4 asks “Do you, or someone close to you, have any direct or indirect connections with these events?” and “If yes, please explain.”

Question 5 asks “Have you ever watched video of George Floyd’s death on the news or the internet?” And “If yes,” provide more details.

Question 6 asks “Have you ever talked about George Floyd’s death with your family, friends, co-workers, or discussed it online, for example, on social media? If yes, what opinions have you expressed?”

Question 7 asks “Did you, or someone close to you, participate in any of the demonstrations or marches against police brutality that took place in Minneapolis after George Floyd’s death?” If Yes, “explain how much you were involved,” and “ if you participated, did you carry a sign? And “What did it say?”

Question 8 asks “Did you or someone you know get injured or suffer any property damage during the protests that took place after George Floyd’s death?”

Question 9 asks “Do you believe your community has been negatively or positively affected by any of the protests that have taken place in the Twin Cities area since George Floyd’s death?”

Question 10 asks whether “you can put aside [whatever you have heard about the case or your prior opinions} and decide this case only on the evidence you receive in court, follow the law, and decide the case in a fair and impartial manner?”

“Part II. MEDIT HABITS”

This Part asks eight questions about the prospective juror’s sources of news.

“Part III. POLICE CONTACTS”

This Part asks 14 questions regarding the prospective juror’s contacts with the police and whether the individual “supported or advocated in favor of or against police reform” (Q 3); the individual’s “honest opinion” on various issues about the police (Q. 9); whether the individual “had . .. ever been trained on how to restrain someone or use a chokehold” (Q. 10); whether the individual had “any martial arts training or experience” (Q. 11); whether the individual “or anyone close to you, participated in protests about police use of force or police brutality (Q. 12); “How favorable or unfavorable you are about Black Lives Matter” and explain your response (Q. 13); “How favorable or unfavorable are you about Blue Lives Matter?” and explain your response (Q. 14).

“PART V. PERSONAL BACKGROUND”

This Part has 18 questions, the first 11 of which are fairly basic.

Question 12 asks whether the individual or anyone close to you, has “any training or experience (work or volunteer}” in the following areas: Law; Law enforcement; Criminal justice or criminology; Forensic science; Medicine or health care; Counseling, Psychology or Mental Health; and “Civil Rights or Social Justice Issues.”

Question 13 asks whether the individual or anyone close to you has had any of these experiences: “Victim of Crime, Accused of a Crime, Struggle with Drug Addiction” and Question 14 asks whether any of such experiences would “make it difficult for you to be fair and impartial” and “Why.”

Question 15 asks the individual whether you have had any of these court experiences: “served on a jury in a criminal case, served on a jury in a civil case, testified as a witness in a court case, served on a grand jury, worked for the judicial branch.” Question 16 asks whether any of such experiences would “make it difficult for you to be fair and impartial“ in this case?” And if so, “why?”

Question 17 asks for a list of “any hobbies or special interests you have.”

Question 18 asks for identification of all “organizations you have belonged to or in which you participate as an active volunteer or financial supporter.”

“PART V. OPINIONS REGARDING JUSTICE SYSTEM”

1. “Do you believe that the jury system in this country is a fair system? Why or why not?”

2. “Do your believe that our criminal justice system works? Why or why not?”

3. “Would you have any difficulty following this principle of law, under our system of justice?”

• “defendants are presumed innocent of the criminal charges against them.” (Para. 3.)
• “the prosecution has the burden of proving the defendant guilty beyond a reasonable doubt.” (Para. 4.)
• “defendants have the right to remain silent, and if they exercise this right, their silence is not to be used against them.” (Para. 5)
• “the potential consequences of your verdict, including potential penalty or punishment, must not in any way affect the jury’s decision as to whether or not the prosecution has proven the defendant guilty beyond a reasonable doubt.” (Para. 6.)
• “the jury must decide the case solely on the evidence produced in court and the law that the judge instructs, and not because of bias, passion, prejudice, or sympathy.” (Para. 7.)

“PART VI. TRIAL LENGTH AND ABILITY TO SERVE”

1. “The best prediction is that jury selection will last from March 8, 2021 to March 26, 2021. You will have to appear at the Hennepin County Government Center for 1-2 days in that timeframe . . . If you are selected for the jury in this case, you will have to appear every weekday starting March 29, 2021 until trial and deliberations are finished (estimated to be three to four weeks). Is there any significant hardship or reason why you cannot serve during this time period.”
2. “During jury deliberation (And possible for part of the trial), the jury will be sequestered. That means the jury will work into the evenings and taken to a hotel to stay overnight. Is there any reason why you cannot be sequestered overnight?”
3. “Secure parking will be provided for jurors, free of charge. Are you able to drive yourself, or have someone drop you off each day?”
4. “How difficult do you think it will be for you to evaluate graphic photographs or video, including photos and video of a person who has died?”
5. “The jury is told not to read, watch, or listen to news accounts of a trial they are involved in until it is over, and not to talk to anyone,about the case, not even to one another, and to not post anything on social media or elsewhere, including through jury deliberations. Would you find it difficult to follow these instructions for any reasons?”
6. “Is there any reason why you would not be able to give your complete attention to a trial during your time as a juror?
7. “Do you have any religious or philosophical beliefs, which would make it difficult for you to be a juror?”
8. “Do you have any medical, visual, hearing, physical, or other impairment that may affect your ability to serve as a juror on this case?”
9. “Is there any other reason that you could not be a fair and impartial juror in this case? If yes, Please explain.”
10. “Is there anything else the judge and attorneys should know about you in relation to serving on this jury?”
11. “Do you want to serve as a juror in this case? {Yes. No. Not sure.]”
12. “Why do you feel that way about serving as a juror in this case?”

Prior Court Comments About Jury Issues

At the September 11th hearing, the Judge said, “it would be almost cruel to keep . . . [jurors] in on weeks at a time. Instead, he suggested they be “semi-sequestered.” Jurors [will] drive to court each day for deputies to escort them from their vehicles to a secure elevator, have their lunches brought in to the jury room and then have them escorted back to their vehicles. The Judge also said he anticipates jury selection will take two weeks with each prospective juror to take the witness stand for questioning by the attorneys.

At the November5th hearing, the Judge issued the Court’s Order for Juror Anonymity and Sequestration and said there are “strong reasons to believe that threats to jurors’ safety and impartiality exist“ in these cases and that “all reasonable means should be taken to insulate the jury from such ex parte contacts.” Therefore, the Court ordered the “jurors’ names, addresses and other identifying information . .. [to] . . .be kept confidential by the Court and all parties throughout the trial and deliberation” After the conclusion of the trial, any information about the jurors shall be disclosed only after a “subsequent written Order” by the Court.

The Judge added that the jurors will be partially sequestered during trial with possible full sequestration if the partial plan “proves ineffective in keeping jurors free from outside influence.” In addition, during jury deliberations at the end of the trial, there shall be full sequestration

Conclusion

Although the Court did not specially call for comments on this Questionnaire by the attorneys in this case, they clearly have the right to object to any of these proposed instructions or to suggest other instructions. However, this set appears to cover all of the points.

Nor did the Judge indicate when this Questionnaire would be sent to prospective jurors or when their responses would have to be sumitted to the Court.(The listing of this item on the Court’s website, however, states it was “mailed to prospective jurors summonsed.”)

It is interesting that the Judge expects that the trial of the four consolidated cases will start on the previously established date of March 8, 2021 (only 87 days after today, including Christmas and New Year’s Day holidays), that jury selection will take three weeks (March 8-26) and that the trial will take three to four weeks (March 29 to April 16 or 23). Those appear to be optimistic to this bystander.

How would you like to be a prospective or actual juror in this case?

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[1] Special Juror Questionnaire [blank],State v. Chauvin, Dist. Ct. File 27-CR-20-12646 (Dec. 22, 2020),
https://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12646/JurorQuestionnaire12222020.pdf;

Bailey, Potential Jurors in George Floyd Case asked if they support defunding the police, amid concerns about ‘fair and safe’ trial, Wash. Post (Dec. 22, 2020),https://www.washingtonpost.com/national/george-floyd-trial-jury-selection/2020/12/22/a49ae422-44a6-11eb-a277-49a6d1f9dff1_story.html.

[2] Results of 9/11/20 Hearing in George Floyd Criminal Cases, dwkcommentaries.com (Sept. 12, 2020), https://dwkcommentaries.com/2020/09/12/results-of-9-11-20-hearing-in-george-floyd-criminal-cases;

Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing, dwkcommentaries.com (Nov. 5, 2020), https://dwkcommentaries.com/2020/11/05/courts-orders-regarding-criminal-trial-of-defendants-in-george-floyd-killing;

Order for Juror Anonymity and Sequestration, State V. Chauvin, Court File No. 27-CR-20-12646, Hennepin County District Court (Nov. 5, 2020).

Court Affirms Livestreaming of George Floyd Criminal Trial  

On November 5, Hennepin County District Court Judge Peter Cahill ordered that the joint criminal trial of the four defendants—Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thao–subject to the conditions contained in the order, including livestreaming. Thereafter the State objected to livestreaming while it was supported by the Media Coalition. [1]

On December 18, the Judge affirmed its original order for such coverage of the trial and denied the State’s motion to reconsider that order. [2]

The latest order conceded that the Court’s allowing audio and video coverage exceeds that allowed by Minn. Gen. R. Prac 4.02(d), but pointed out that another provision of these rules (1.02) ‘provides that ‘[a] judge may modify the application of [the General Rules of Practice] in any case to prevent manifest injustice.’

The Court concluded this latest order with this statement.  “[T]he State’s suggested procedures to accommodate the Defendants’ Sixth Amendment rights [to a public trial] and the public’s and press’ First Amendment rights to a public trial would be, at best, inadequate, and at worst, mere lip-service to the Defendants’ and the public’s constitutional rights.” (P. 7.)

Conclusion

With this order and the previous order denying the motions for sanctions against the State for alleged deficiencies in discovery, the only pending motions awaiting decision are (i)  Lane’s motion to reconsider joinder of the four defendants for one trial; (ii) the  State’s objection to evidence of Floyd’s prior incident with the Minneapolis police; and (iii) Chauvin and Lane’s objections to the State’s intent to offer evidence of prior incidents involving Chauvin’s alleged use of excessive force.[3]

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[1] Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing, dwkcommentaries.com (Nov. 5, 2020)(order for livestreaming); Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases, dwkcommentaries.com (Nov. 18, 2020)(includes State’s objection to livestreaming); Recent Developments in George Floyd Criminal Cases, dwkcommentaries.com(Dec. 12, 2020)(summary of State’s arguments against livestreaming); George Floyd Cases: Media for Livestream; Chauvin Criticizes State’s Disclosures, dwkcommentaries.com (Dec. 15, 2020).

[2] Order Denying Motions To Reconsider and Amend Order Allowing Audio and Video Coverage of Trial, State v. Chauvin, Dist. Ct. File 27-CR-20-12646 (Dec. 18, 2020); Sawyer, Judge upholds decision to livestream trial of officers in George Floyd killing, StarTribune (Dec. 18, 2020).

[3] Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases, dwkcommentaries.com (Nov. 18, 2020).