Gag Order in George Floyd Murder Cases  

On July 9, Hennepin County District Judge Peter Cahill issued an order prohibiting attorneys and others working on the matter from publicly talking about “any information, opinions, strategies, plans or potential evidence . . . either to the media or members of the general public. This includes, but is not limited to, any discovery provided to the parties, and any exhibits in the case.” However, “access to public records [in the cases] is not restricted by this order.”[1]

The Order applies to “all parties, attorneys, their employees, agents, or independent contractors working on their behalf.”

The Order was prefaced by the following statement, “The court has been made aware that two or more attorneys representing parties in . . .[these] cases granted interviews or talked with the media yesterday, expounding on the merits of the case or commenting on other aspects of the case after a motion to dismiss was filed in [the Lane case]. The court find that continuing pretrial publicity in this case by the attorneys involved will increase the risk of tainting a potential jury pool and will impair all parties’ right to a fair trial.”

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[1] Gag Order, State v. Chauvin, Thao, Lane, Kueng, Dist. Ct. Files 27-CR-20-1646, 12949, 12951. 12953 (July 9, 2020); Xiong, Judge issues gag order in trial of ex-officers charged in George Floyd killing, StarTribune (July 9, 2020); Assoc. Press, Judge imposes gag order on attorneys in George Floyd case, StarTribune (July 9, 2020).

 

 

 

 

Pretrial Hearing in Criminal Cases Over George Floyd Killing

On June 29, Hennepin County District Judge Peter Cahill held a pretrial hearing in the George Floyd criminal cases against Derek Chauvin,Tou Thao,Thomas Lane and J. Alexander Kueng.[1]

The judge scheduled another pretrial hearing for September 11 and for the trial tentatively to start on March 8. Although the prosecutors seem to be pushing for a consolidated trial, defense counsel are expected to request separate trials so that should be a future issue for the court to resolve.

None of the officers entered pleas at the hearing, but Lane’s attorney told the court he would be filing a motion to dismiss the case against his client for alleged insufficiency of evidence. Afterwards Kueng’s attorney filed a document with the court advising that his client intends to plead not guilty, claiming self-defense and use of reasonable and authorized force.

One of the major issues at the hearing was whether public officials’ statements about the cases might call for a change of venue from Minneapolis in Hennepin County to another county. Robert Paule, the attorney for Thao, said he was planning to make such a motion in light of public statements by Police Chief Arradondo and Department of Public Safety Commissioner Harrington, who have called Floyd’s death a “murder,” along with other statements by Gov. Tim Walz and Attorney General Keith Ellison.

Judge Cahill acknowledged these statements, and said people who are aligned with the state’s stance on the case are pushing it toward a change of venue. “It’s in everyone’s best interest” that no public statements about the case be made, the Judge said, noting that they’ve come from family, friends and law enforcement officials. “What they’re doing is endangering the right to a fair trial” for all the parties.

“They need to understand that; at this point they need to be aware of that,” Cahill said, and asked Assistant Attorney General Matthew Frank if prosecutors are addressing the matter with public officials. In response, Frank said, “We are just as interested in fair trial and are acutely aware of the issues you talk about. We have asked people not to talk about this case … we’ve done our best to make the court’s concerns known to them and will continue to do so.”

The Judge also admonished two members of Floyd’s family for visibly reacting to his statements at the hearing. Afterwards George Floyd’s uncle, Selwyn Jones, told journalists he was offended by the Judge’s comments.

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[1] Xiong, Former officers to appear in court Monday in George Floyd killing, StarTribune (June 29, 2020); Xiong, In George Floyd case,  judge warns that public officials speaking out could force venue change, StarTribune (June 30, 2020); Neuman, Tentative Trial Date Set For Ex-Minneapolis Officers Accused in George Floyd Death, MPR News (June 29, 2020); Chakraborty, Four ex-cops Linked to George Floyd’s death appear in court, judge sets 2021 trial date, Fox News (June 29, 2020); Bailey & Berman, Ex-Minneapolis officers charged in George Floyd’s killing get tentative trial date in March, Wash. Post (June 29, 2020); Arango, In Court, Derek Chauvin’s Lawyers Say Officials Have Biased the Case, N.Y. Times (June 29, 2020); Wernau & Barrett, Officers charged in George Floyd’s Killing Appear Before Judge, W.S.J. (June 30, 2020); George Floyd judge warns he may move trials if officials keep talking about the case, Guardian (June 29, 2020).

 

 

 

Developments in Criminal Cases Over Death of George Floyd

The four defendants in the criminal cases over the death of George Floyd last week made an unusual request for pretrial and trial audiovisual coverage which the court denied, in part. The issues in the cases were analyzed by criminal law experts. And some personal background information of the four defendants have been publicly discussed. After examining these developments, we will  await the results of the pretrial hearing in the four cases on June 29th.[1]

 Motion for Pretrial and Trial Audiovisual Recording [2]

On June 25 the attorneys for the four criminal defendants made a motion for audiovisual recording of pretrial and trial proceedings in the cases. Thomas Plunkett, the attorney for J. Alexander Kueng, on behalf of all defendants, asserted that such relief was “necessary to provide the Defendants with a fair trial in light of the State’s and other governmental actors multiple inappropriate comments and to assure an open hearing in light of the ongoing pandemic.” Those officials, said Plunkett, included “Public Safety Commissioner John Harrington, Minneapolis Mayor Jacob Frey and Minneapolis Police Chief Medaria Arradondo.”

More specifically, Plunkett said, “this relief is necessary to blunt the effects of the increasing and repeated media attacks from the various officials who have breached their duty to the community. These State comments have crescendoed to an extraordinary volume this week with the Chief pronouncing that ‘[w]hat happened to Mr. Floyd was murder.’ The State’s conduct has made a fair and unbiased trial extremely unlikely and the Defendants seek video and audio coverage to let a cleansing light shine on these proceedings. Doing otherwise allows these public officials to geld the Constitution.”

Attorney General Keith Ellison responded by saying that although he supports a public trial, “Cameras could alter the way the lawyers present evidence. Cameras in the courtroom could subject the participants in the trial to heightened media scrutiny and thereby be distracting to conducting the trial.” The chances of  “creating more sensation than understanding” was “very high,” Ellison said.

The Hennepin County District Judge, Peter Cahill, immediately denied the motion for such pretrial coverage while reserving decision on the motion for such coverage of the trial. The Judge stated that Minnesota court rules require both the defense and prosecution to agree for such coverage for pretrial proceedings and that the prosecution did not so agree. In addition, said the Judge, such coverage “would risk tainting a potential Hennepin County jury pool.”

Analysis of Issues in These Criminal Cases[3]

A journalist reports, “Veteran defense attorneys say the prosecution’s case against Chauvin is strong, while a series of unique circumstances pose challenges to both prosecutors and defense attorneys.”

Several facets of these cases seem to favor the prosecution. These cases do not involve “split-second” decisions on use of force which often lead a jury to avoid second guessing such decisions. Moreover, “Floyd warned the officers of his own impending death after repeatedly telling them he couldn’t breathe,” and bystanders were making the same warning. Finally the three officers charged with “aiding and abetting” could cause a crack in the alleged “blue wall of silence” protecting officers.

Indeed, at their initial appearances, the attorneys for Lane and Kueng argued that their clients were rookies who relied on Chauvin, a 19-year veteran and their training officer, for guidance at the scene.

A prominent local criminal defense attorney, Joe Friedberg, thought that Lane’s twice suggesting turning Floyd over and later performing CPR on him was strong evidence he had no intent for Floyd to die.

Another local criminal defense attorney, Robert Richman, had a different reaction. He thought that Chauvin “could direct the blame at Lane, who was holding down Floyd’s leg as Floyd lay stomach-down in the street, and Kueng, who was holding onto Floyd’s back. It seems that keeping someone … in a prone position on your stomach and having pressure placed on your back causes respiratory difficulties.” Perhaps “it was the other two officers holding him down that caused the breathing difficulties,” rather than Chauvin kneeling on the side of Floyd’s neck.

Another complication was the existence of two different autopsy reports. “The Hennepin County Medical Examiner’s Office found that Floyd died when his heart stopped  while he was being restrained, noting that the presence of fentanyl intoxication and recent methamphetamine were “other significant conditions” while the autopsy commissioned by the attorneys for Floyd’s family said he died of asphyxia. These provide bases for defense arguments that Floy had started to die before Chauvin put his knee on the neck.

New Rule for Use of Bodycam Footage[4]

On June 27 Minneapolis Mayor Jacob Frey and Police Chief Medaria Arradondo announced a new rule for officers’ review of their body camera footage. Now the officer “as soon as practical” must write and submit his or her written report of the incident before looking at that footage and before talking with anyone other than the incident commander and the lead investigator. This new rule purportedly will provide a more accurate account of the officer’s recollection of the incident.

The Police Officers’ Backgrounds[5]

The police personnel files for the four officers and published articles reveal the following  details:

  • Derek Chauvin. He attended Park High School in Cottage Grove, Minnesota, but did not graduate. After getting his GED he attended Dakota County Technical College, Inver Hills Community College and Metropolitan State University, all in Minnesota. Previous jobs include working security, and food service including at a McDonald’s. Chauvin also had two periods of active service in the U.S. Army. From September 1996 to February 1997 he was stationed in Rochester, Minnesota with a job in military police. He served again from September 1999 to May 2000 in military police, at Hohenfels, Germany where his job duties as including criminal investigations, traffic enforcement and proactive patrol.

During his 19-year career with the Minneapolis Police Department, Chauvin was involved with several police shootings, includes both commendations and more than 15 conduct complaints. Almost all the complaints were closed without discipline, records show, suggesting the allegations weren’t sustained. The nature of the complaints wasn’t made public. The file includes a 2008 letter of reprimand Chauvin received for the two violations involving “discretion” and a squad car camera. “This case will remain a B violation and can be used as progressive discipline for three years,” the letter notes. Chauvin received a Medal of Commendation in 2008 for disarming a man outside the El Nuevo Rodeo club on E. Lake Street while working security off-duty in his uniform. He was also recommended for a Medal of Valor in 2006 related to the shooting death of Wayne Reyes, a stabbing suspect who fled in his truck with officers in pursuit. When Reyes stopped and climbed out of the truck, police said he swung his sawed-off shotgun toward the six officers, all of whom fired their weapons.

Chauvin his married , but immediately after his arrest for the Floyd death, she filed for divorce with her attorney saying, “She is devastated by Mr. Floyd’s death and her utmost sympathy lies with his family, with his loved ones and with everyone who is grieving this tragedy.”

  • Tou Thao. The 11-year veteran and native Hmong speaker from Coon Rapids, Minnesota first applied to the department as a community service officer following stints in food service and as a security guard. He was among those laid off three days before Christmas in 2009 as the police department faced a $13 million budget shortfall. In a termination letter, a supervisor assured him the action was not related to his job performance. Officials called him back to work almost exactly two years later.

Thao and another officer were the subjects of a 2017 police brutality lawsuit. Lamar Ferguson, a black man, alleged that in 2014 the two officers told him they were serving a warrant for his arrest, then beat him, breaking his teeth, while he was handcuffed. The city of Minneapolis paid $25,000 to settle the civil rights case.

  • Thomas Lane. A University of Minnesota graduate in sociology of law, criminology and deviance. He worked with at-risk youth as a juvenile detention guard and probation officer in the Twin Cities before applying as a police recruit at age 35. He also had volunteer work mentoring Somali youth and school kids.
  • Alexander Koenig. At age 26, he is the youngest of the four officers and is of mixed-race and identifies as African-American. In 2010 he and two siblings made several trips to Haiti to help at an orphanage, once after its 2010 earthquake.He was captain of the varsity soccer team at Patrick Henry High School in Minneapolis, where he graduated in 2012. He also played for the Cruz Azul Minnesota soccer club. He attended Monroe College, Minneapolis Community & Technical College and the University of Minnesota, graduating from the last in 2018 with a major in sociology of law, criminology and deviance and becoming conversational in the Russian language. His work history includes a job as security monitor at the University of Minnesota and working in loss prevention at Macy’s. He also worked at Target, and he coached youth baseball and soccer at the Brooklyn Center Community Center.

Kueng had seen a sibling arrested and treated poorly by sheriff’s deputies and had told friends he was joining the police to help protect people close to him from police aggression as the best way to fix a broken system.

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[1] This blog has published posts about the Floyd death and related issues of police reform. See List of Posts to dwkcommentaries—Topical: George Floyd Killing; List of Posts to dwkcommentaries—Topical: Police Reform.

[2]  Xiong & Montemayor, Judge denies audiovisual coverage of hearings for former officers charged in George Floyd killing, StarTribune (June 26, 2020).

[3] Xiong, In trial over George Floyd’s killing, both defense, prosecution face unique challenges, StarTribune (June 27, 2020).

[4]] Klecker, Minneapolis mayor, police chief announce tighter body-camera rules, StarTribune (June 29, 2020).

[5] Bjorhus & Sawyer, Personnel records shed light on four Minneapolis police officers charged in George Floyd’s death, StarTribune (June 4, 2020); Bjorhus, A deeper look at the four officers fired after George Floyd death, StarTribune (June 1, 2020); Barker, Eligon & Furber, Officers Charged in George Floyd’s Death Not Likely to Present United Front, N.Y.Times (June 4, 2020); Barker, The Black Officer Who Detained George Floyd Had Pledged to Fix the Police, N.Y. Times (June 27, 2020); Wernau, The Other Police Officers Charged in George Floyd Killing, W.S.J. (June 29, 2020).

 

Judge Peter Cahill Appointed To Handle Criminal Cases Over Death of George Floyd     

On June 12, Hennepin County District Judge Peter Cahill was appointed to handle the four criminal cases against Minneapolis police officers over the death of George Floyd.[1]

Cahill was appointed to the bench in 2007 by Governor Tim Pawlenty (Rep.) and elected to continue in that position in 2008 and 2014. Known for being decisive and direct, Cahill has handled other significant criminal cases.

In 2019, he presided over the jury trial of Kenneth Lilly for shooting a school bus driver on a snowy winter day. After the jury’s guilty verdict, Cahill sentenced Lilly to seven years in prison, saying the judge accepted that the defendant was “not a monster,” but did not believe the defendant’s assertions that he feared for his life when his car was hit by the slow-moving bus and that he did not know a child was on the bus. Lilly was represented by Thomas Plunkett, who argued for a lower sentence because Lilly had Asperger’s syndrome and suffered from post-traumatic stress disorder from two attempted robberies. Plunkett now represents one of the four Minneapolis policemen (J. Alexander Kueng) in the Floyd case.[2]

Last year Cahill also presided over the case of Thomas Incantalupo, a former ice skating coach with a local skating club. As the trial for nine counts of sexual assaults with a young girl skater was set to commence in June 2019, the defendant accepted a deal for pleading guilty to two counts in exchange for a prison sentence between 12 and 30 years. Thereafter Cahill sentenced him to 24 years in prison after saying that there was “overwhelming evidence” against the defendant, that the defendant’s apologies “ring hollow” and that the defendant’s actions were “not cheating on your wife. This is a crime against a child.” That defendant was represented by attorney Earl Gray, now the attorney for policeman Thomas Lane in the Floyd case.[3]

Plunkett and Gray and the other two attorneys in the George Floyd case now have 10 days from June 12 to move to replace Cahill, but without having any say on who might be the                replacement and without having the right to move to replace the successor judge.

Before becoming a judge, Cahill was an attorney in the Hennepin County Public Defenders Office, 1984-1987, an attorney in private practice in the Twin Cities, 1987-1997 and in the Hennepin County Attorney’s office, 1997-2007, when Amy Klobuchar was the County Attorney (1999-2007).  His J.D. degree was awarded, magna cum laude, in 1984 by the University of Minnesota Law School.

Cahill will replace his fellow judges Jeannice Reding and Paul Scoggin, who presided respectively at the initial hearings in the Chauvin case and the other case involving the other three policemen.[4] Cahill’s appointment was made by Hennepin County District Judge Toddrick Barnette, who will become the first African-American Chief Judge of the court on July 1, 2020.[5]

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[1] Olson, Judge Peter Cahill to oversee cases of four officers charged in Floyd killing. StarTribune (June 12, 2020); The judge assigned in Floyd’s murder trial is a former assistant to Amy Klobuchar, N.Y. Times (June 12, 2020).

[2] Walsh & Jany, Suspected gunman arrested after school bus driver shot in apparent road-rage incident near downtown Minneapolis, StarTribune (Feb. 7, 2019); Charges filed against man who shot bus driver, (Video), StarTribune (Feb. 7, 2019); Walsh, Charges: Man claims self-defense for shooting Minneapolis school bus driver with girl aboard, StarTribune (Feb. 8, 2019); Xiong, Shooter who wounded school bus driver sentenced to 7 years in prison, StarTribune (Sept. 15, 2019).

[3]  Stahl, Ice-skating coach charged with sexually assaulting 14-year-old student, StarTribune (Jan. 11, 2018); Walsh, Twin Cities skating coach admits sexually abusing girl he instructed, StarTribune (June 19, 2019); Xiong, Minneapolis-area figure skating coach gets decades in prison for girl’s sex abuse, StarTribune (Sept. 27, 2019).

[4] Initial Hearings in Criminal Cases for Killing George Floyd, dwkcommentaries.com (June 10, 2020).

[5] Xiong. First chief judge of color elected in Hennepin County, StarTribune (May 5, 2020).