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?

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

[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]

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

[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).

Court Issues Order on Expert Disclosures in George Floyd Criminal Cases     

On December 17, Hennepin County District Court Judge Peter Cahill ordered the following:[1]

  • On January 11 at 3:00 p.m. a Zoom remote hearing will be held for consideration of “[v]arious motions by Defendants for continuation of the trial date, attorneys’ fees, and other sanctions for the State’s alleged discovery violations.” (Para. C)
  • By January 15, “All Defendants shall provide initial expert disclosures of experts’ names, curricula vitae and general subject matter on which they will give testimony. (Para. A)
  • By January 19, “the State shall disclose expert reports and findings, and complete written summaries of the subject matter of each expert’s testimony.” (Para. B)
  • By February 8, “Defendants shall disclose expert reports and findings, and complete written summaries of the subject matter of each expert’s findings.” (Para. B)
  • All such expert disclosures “must include all findings, opinion, or conclusions by which each expert is expected to testify; the basis for the findings, opinions and conclusions; and each expert’s qualifications, if not already evident from curricula vitae.” (Para. B.)

On the next day, December 18, the State filed a brief responding to defendant Thao’s motion for sanctions.[2] Its Introduction succinctly says what is amplified in the reset of its pages:

  • “At issue in Thao’s motion are two documents held by the United States Attorney’s Office: notes taken by and FBI agent of an interview of Dr. Baker [the Hennepin County Medical Examiner] and a letter from Dr. Baker, through his legal counsel, clarifying those notes. The State did not initially have possession or control of these documents, but diligently sought to obtain them.” Once the State obtained them, the State promptly disclosed the documents to the defendants in a matter of days.”
  • Although Thao allegedly found out about this purported discovery violation on October 28 [when these two documents were provided by the State, he] filed this motion on December 11, just four days before his December 15 deadline to make expert witness disclosures. . . {Therefore, his] unfounded allegation of a discovery violation appears to be nothing more than cover for a request for more time to meet his discovery violation.”

This skirmish over discovery seems obviated by the above Court order.

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

[1]  Order, Expert Witness Disclosure Deadlines and Hearing on Defendants’ Motions for Trial Continuance, State v. Chauvin, Dist. Ct. File 27-CR-20-12646 (Dec. 17, 2020).

[2]  State’s Response to Defendant Thao’s Motion for Sanctions and Hearing Regarding Discovery by State, State v. Thao, Dist. Ct. File NO. 27-CR-20-12949 (Henn. Cty. Dist. Ct. Dec. 18, 2020). Thao’s motion for sanctions is discussed in the fourth section of Recent Developments in George Floyd Criminal Cases, dwkcomentaries.com (Dec. 12, 2020).

Recent Developments in George Floyd Criminal Cases

Since the filing of criminal charges against four former Minneapolis police officers over the May 25th death of George Floyd there have been many submissions to the court, pretrial hearings and court orders that have been summarized in previous posts.[1]  Now we look at the developments in the cases since November 18.

Kueng’s Supplemental Offer of Proof Regarding Floyd’s 5/6/19 Incident [2]

On November 23, Defendant Kueng submitted records of his attorney’s interviews of four other police officers involved in the May 6, 2019 Minneapolis arrest of Mr. Floyd as an offer of proof to admit evidence of that arrest at trial.

State’s Disclosure of Expert Witnesses [3]

 On November 24, the State of Minnesota disclosed the following potential expert witnesses and reports:

  • Michael Berkow;
  • John J. Ryan,
  • William Louis Manion, M.D.
  • Glenn G. Hardin, MPH, DABFT
  • William Louis Manion, M.D.,
  • S. Charles Schulz, II,
  • Michael M. Baden, M.D.,
  • Theodore C. Chan, M.D.,
  • Sellman Charles Schulz, II, M.D.,
  • Lawson F. Bernstein, Jr., M.D.,
  • Joshua O. Zimmerman,
  • Andrew M. Baker, M.D.,
  • Theodore Chan,
  • Michael M. Baden, M.D.

State’s Arguments Against Livestreaming of Trial [4]

On November 25, the State moved for reconsideration of the order for audio and video coverage of the trial. It made the following points:

  • “The Minnesota General Rules of Practice . . . permit audio or visual recordings of criminal trials, but only if the State and Defendants have consented ‘in writing” or “on the record prior’ to trial.” But at least the State had not so consented.
  • “Moreover, even when the parties consent, the Rules prohibit video and audio recordings of ‘any witness who objects thereto in writing or on the record before testifying.’”
  • Neither the U.S. nor the Minnesota Constitution “requires such recordings.” And the “Sixth Amendment’s core purpose—transparency—can readily be achieved with overflow rooms and closed-circuit cameras. “
  • “[R]ecording and publicly broadcasting witness testimony without consent will cause witnesses to lose their privacy and suffer possible threats of intimidation, and may make it less likely that some witnesses will come forward and testify at trial. “

Defendant Thao Asks for Trial Delay & Sanctions on Prosecution [5]

 On December 11, Defendant Tou Thao’s attorney filed a motion to delay the trial from March 8 to July 5 and for sanctions against the prosecution for its alleged delay in sharing important evidence with the defense.

The motion asserted that the Court’s order of June 30 required the prosecution to share all evidence by August 14, but the prosecution has delayed sharing more than 15,000 pages of evidence over eight separate instances. Most significant was the prosecution’s not providing until October 28 an account of a July 8 interview of Hennepin County Chief Medical Examiner Andrew Baker.. The defense attorney also asked the Court to order the State to pay for the defense attorney’s fees and costs caused by the delays and postpone the defense’s deadline to disclose their expert witnesses.

Dr. Andrew Baker in that July 8 interview described “the mechanism of death as Floyd’s heart and lungs stopping due to the combined effects of his health problems as well as the exertion and restraint involved in Floyd’s interaction with police prior to being on the ground.”  (Emphasis in the brief.)

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

[1]  See List of Posts to dwkcommentaries—Topical: George Floyd Killing.

[2]  Defendant’s Supplemental Offer of Proof in Support of Motion To Admit Floyd’s May 6, 2019 Incident, State v. Kueng, Court File No. 27-CR-20-12933 (Hennepin County District Court Nov. 23, 2020).

[3] Supplemental Prosecution Disclosure Pursuant to Rule 9.01, Subd. 1, State v. Chauvin, Court File No. 27-CR-20-12646 (Nov. 24. 2020).

[4] State’s Motion for Reconsideration of Order Allowing Audio and Video Coverage of Trial, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County District Court Nov. 25, 2020);  Xiong, Prosecutors challenge judge’s order allowing livestreamng of George Floyd trial, arguing it could harm testimony, StarTribune (Nov. 30, 3030).

[5] Motion for Sanctions and Hearing Regarding Discovery Violations by the State, State v. Thao, Court File No 27-CR-20-12949 (Hennepin County District Court Dec. 11, 2020); Exhibit 1 to said motion (FBI Memo of Interview of Andrew Baker, MD (09/01/20)); Exhibit 2 to said Motion (Letter, Aug. 7, 2020, Office of Hennepin County Attorney to Assistant U.S. Attorney Jeffrey Paulsen); Defense attorney: Prosecutors in George Floyd case should be sanctioned for delaying sharing evidence, StarTribune (Dec. 11, 2020).

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

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

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

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

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

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

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

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

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

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

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

Lane’s objection to such evidence was just discussed.

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

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

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

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

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

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

Reactions

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

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

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

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

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

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

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

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

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

Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing

On November 5, Hennepin County District Court Judge Peter Cahill issued five significant orders relating to the trial in the criminal cases against the four former Minneapolis policemen involved in the killing of George Floyd: Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thao. [1]

These orders (1) granted the State’s motion for a joint trial of the four defendants; 2) preliminarily denied the defendants’ motions for change of venue; (3) provided for  juror anonymity and sequestration; (4) allowed audio and video coverage of the trial; and (5) narrowed its previous order regarding four members of the Hennepin County Attorney’s Office’s participation in the cases.

These five orders will be reviewed below.

                  Joint Trial of the Four Defendants[2]

The 51-page Order and Memorandum Opinion sets forth the Factual Background and then Discussion of the four-factor test for joinder established by the Minnesota Rules of Criminal Procedure and Minnesota case law. The following is the Court’s Summary of that detailed discussion (pp. 4-5).

“The first factor weighs strongly in favor of joinder because of the similarity of the charges and evidence against all four Defendants.” Indeed, “the critical evidence at trial”—body-cam videos of three of the defendants and cell-phone video of a bystander; Minneapolis Police Department Policies and Procedures and Training Manuals; autopsy reports and medical and forensic testimony about the circumstances and causes of Floyd’s death; and eyewitness testimony—”will be the same for all four Defendants.”

“The second factor slightly favors joinder in view of the impact of conducting four separate trials . . . would have on eyewitnesses if . .. [they] were forced to relive the events of May 25, 2020, by testifying to the same events at multiple trials,” especially since one of these witnesses is a minor.

“The third factor also strongly favors joinder because there is no indication at this stage of the proceedings that any of the Defendants is likely to be prejudiced by joinder because their defenses are not antagonistic but instead are mutually supportive.”

The “fourth factor also strongly favors joinder because conducting four separate trials arising from the same underlying incident and involving the same evidence and the same witnesses would result in unwarranted delay and impose unnecessary burdens on the State, the court, and the witnesses. Moreover, in wake of the unprecedented . . . scope of the publicity [about these cases] . . . if trials were to proceed separately for each Defendant, trial-related publicity surrounding the first trial (and succeeding trials) could potentially compound the difficulty of selecting a fair and impartial jury in all subsequent trials. Thus, the interests of justice also warrant joinder.”

Preliminary Denial of Change of Venue[3]

 The Court considered two factors in preliminarily deny the Defendants’ motions to change venue and transfer the case from Hennepin County to another district court in Minnesota: prejudicial publicity and safety concerns of the defendants and their attorneys.

With respect to the first factor, the Court took “judicial notice that the death of George Floyd has generated thousands of articles, reports and commentary in Minnesota, the entire United States, and internationally.” (n. 10.) As a result, “no corner of the State of Minnesota has been shielded from pretrial publicity regarding the death of George Floyd. Because of that pervasive media coverage, a change of venue is unlikely to cure the taint of potentially prejudicial pretrial publicity. Nevertheless, this is only a preliminary ruling and the parties are free to present the evidence from public opinion surveys they are presently conducting. In addition, this Court is planning to issue jury summons earlier than usual and to require summoned jurors to fill out questionnaires well before trial to gauge their knowledge of the case and any potential bias.”

The second factor—safety concerns—calls for “better safety planning,” which is currently being conducted by the Hennepin County Sheriff’s Office and the Court. The safety concerns regarding the 9/11/20 hearing at the smaller Hennepin County Family Justice Center with limited entrances and exits suggests it is more difficult to enhance security at such facilities, which would be true if the cases were transferred to a smaller county. Having the trial at the Hennepin county Government Center would facilitate tighter control of floor access and movement. In short, the “Court believes that safety issues can be mitigated to the point that a fair and safe trial may be had in Hennepin County and a jury can be insulated from outside influence and remain impartial.”

Juror Anonymity and Sequestration[4]

After reviewing the extensive publicity about the death of Mr. Floyd and these cases and related protest and unsolicited ex parte communications to the Court and counsel, 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.

Each Defendant shall have five preemptory challenges of prospective jurors, and the State twelve such challenges. There will be four alternate jurors.

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.

Audio and Video Coverage of the Trial [5]

 The trial shall commence on March 8, 2021, and “may be recorded, broadcast, and livestreamed in audio and video subject to the conditions” contained in the order.

Order Regarding Hennepin County Attorneys[6]

The Court’s oral order removing four members of the Hennepin County Attorney’s Office from these cases is vacated although they may not “appear as advocates in the trials and may not sign any motions or pleadings in these cases.

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

[1] Olson, Ex-officers charged in George Floyd case to be tried together in Hennepin County, cameras allowed in courtroom, StarTribune (Oct. 5, 2020).

[2] Order and Memorandum Opinion Granting State’s Motion for Trial Joinder, State v. Chauvin, Court File No. 27-CR-20-12646, Hennepin County District Court (Nov. 5, 2020).

[3] Preliminary Order Regarding Change of Venue, State v. Chauvin, Court File No. 27-CR-20-12646, Hennepin County District Court (Nov. 5, 2020).

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

[5] Order Allowing Audio and Video Coverage of Trial, State v. Chauvin, Court File No. 27-CR-20-12646, Hennepin County District Court (Nov. 5, 2020).

[6] Order, State v. Chauvin, Court File No. 27-CR-20-12646, Hennepin County District Court (Nov. 5, 2020).

Court Denies Prosecution’s Motion for Temporary Protective Order in George Floyd Criminal Cases    

On October 15, as anticipated, the Media Coalition filed  its opposition to the Prosecution’s Motion for a Temporary Protective Order in the George Floyd Criminal Cases. Later that same day, the Court held a hearing on that motion.

Media Coalition’s Opposition[1]

The Media Coalition’s 12-page brief “respectfully requests that the Court, consistent with its obligations under the common law, its own rules of access, the First Amendment—and, indeed, consistent . . . with its own August 7 Order and August 11 Memorandum Opinion—immediately make the motion papers that Defendant Thomas K. Lane filed on October 12, 2020, including all video exhibits, available to the press and public and that it deny the State’s motion requesting their continued sealing. The Coalition further requests that the Court deny the State’s Motion for Order Temporarily Restricting Public Access to Motions and Exhibits.”

Hearing on the Motion[2]

At a 25-minute hearing, Judge Peter Cahill denied the Prosecution’s motion, but added he would not allow audio, video or photographs to be attached to future filings by the parties. He said the video of George Floyd’s 2019 arrest in Minneapolis “shows what basically everybody already knows: Floyd was arrested on a previous occasion.” Moreover, the Judge noted that this arrest video was potentially helpful to the prosecution and that previously he had banned evidence of Floyd’s involvement in an armed robbery in Texas before he had moved to Minneapolis.

Subsequent Developments [3]

Immediately after the hearing, Jonathan Mason, an activist with 10K Foundation, interrupted attorney Earl Gray’s interview by a reporter, to protest alleged behavior by Chauvin and to accuse the attorney of “protecting a killer.” (This Foundation’s website says, “We are helping communities preserve their freedom, justice and access to the American dream.”)

Later that same afternoon, a group of about eight protesters walked around the skyway level of the Government Center. Some were yelling, “[Expletive] Derek Chauvin.” One of them, Thomas W. Moseley, a 29-year-old from Blaine, yelled. “Kill Derek Chauvin,” and he was handcuffed, searched and taken away after deputies found a black handgun and several knives on him; he was charged with possession of a dangerous weapon, a felony.

Similar heated protests directed at the defendants and their attorneys (and damage of an attorney’s vehicle). occurred after the September 11th hearing. Thereafter these protestors’ actions were cited by one of the defendants as an additional reason (protecting the safety of the defendants and their attorneys) for transferring the case out of Hennepin County. [4]

These incidents provided additional grounds for defendants’ motions to change the venue of the cases—move them from Hennepin County District Court to another state court in a different county.

Therefore, this blog must reiterate that persons who are interested in justice for George Floyd and want the murder and manslaughter trial(s) to be held in Hennepin County, where the killing occurred, must change their tactics. Such protests merely provide evidence to the defendants’ motions to have the cases transferred to another county court in the state.

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

[1] Important Prosecution’s Filings in George Floyd Criminal Cases dwkcommentaries.com (Oct. 14, 2020); Media Coalition’s Opposition to State’s Motion to Restrict Access to Defendant Lane’s October 12 Filings and State’s Motion for a “Temporary” Protective Order (Oct. 15, 2020).

[2] Olson, Judge denies prosecution’s request to seal all filings in Floyd case for at least 48 hours, StarTribune (Oct. 15, 2020).

[3] Olson, n.2; Xiong, Defense Attorney in George floyd case renews call to move ex-cops’ trial after armed protester’s arrest, StarTribune (Oct. 16, 2020).

[4] See these posts and comment to dwkcommentaries.com: Results of 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 12, 2020); Additional Developments in George Floyd Criminal Cases (Oct. 4, 2020); Comment: Woman Charged for Damaging Car of Defendant’s Lawyer in George Floyd Criminal Cases (Oct. 13, 2020).

Important Prosecution Filings in George Floyd Criminal Cases

On October 12, the prosecution (the State of Minnesota) filed two important documents in the George Floyd criminal cases against four ex-Minneapolis policemen—Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thao. The first is a motion to have all motions and exhibits in the case remain under seal for two business days “to permit the parties to review . . . [them] before they are made available to the public and, if necessary, to notify the Court within two business days of their intent to oppose public disclosure.” The second is the prosecution’s memorandum in support of other evidence the State intends to offer at trial. Here is a summary of those documents.

Motion To Limit Public Access to Case Materials[1]

The prosecution’s motion to limit public access to case materials was precipitated by an October 12th motion by Earl Gray, the attorney for Defendant Thomas Lane, to include in trial evidence a video from an incident on May 6, 2019, when three other police officers were attempting to have George Floyd show his hands, stop moving around and spit out something he had put in his mouth and when Floyd cried out for his “Mama” and “Don’t shoot me, man.”

Gray in his motion for admission of this evidence apparently argued that the 2019 arrest is relevant to his client’s defense because prosecutors have presented a ‘false narrative’ by portraying Floyd as a ‘law-abiding citizen that was afraid for his life.’ Instead, Gray said, “Floyd’s behavior in the earlier arrest is ‘almost an exact replica’ of how he behaved during his fatal encounter with police a year later outside Cup Foods in south Minneapolis. . . . Floyd cried, mumbled and yelled throughout his interview with the police ,” and Gray argued that‘s how Floyd behaves under ‘the influence of a pill.’”

In response to this motion by Mr. Gray, the prosecution immediately filed the motion to have all motions and exhibits in the case remain under seal for two business days “to permit the parties to review . . . [them] before they are made available to the public and, if necessary, to notify the Court within two business days of their intent to oppose public disclosure.” If any of the parties “oppose public disclosure, the court may then request briefing and set a briefing schedule on a motion opposing public disclosure.”  In support of this motion, the prosecution cited U.S. and Minnesota Supreme Court decisions supporting such a restriction, especially where there is a risk of prejudicial pretrial publicity.

This prosecution motion is opposed by the Media Coalition, which includes the StarTribune.

On October 15, Hennepin County District Court Judge, Peter Cahill, will hold a hearing on the prosecution’s motion

Arguments for Additional Evidence[2]

On October 12th the State filed a 44-page memorandum in support of additional evidence it plans to offer at the criminal trials of Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thau.

After a short Introduction, this memorandum sets forth in 12 pages a detailed “Statement of Facts” with evidentiary citations regarding “The Events of May 25, 2020” (the day that Floyd was killed). This included the following regarding the physical restraint of Floyd on the pavement:

  • At 8:11 p.m., Kueng “and Lane handcuffed Floyd’s arms behind his back. . . From this moment on, and for all of the remaining minutes of his life, Floyd’s hands remained handcuffed.” (P.3.)
  • “At 8:19:14-45 p.m., Chauvin, Kueng, and Lane pinned Floyd to the pavement face-down.” (p. 7.)
  • At 8:23:58—8:24:00 p.m., “Floyd then said what would be his final words: ‘I can’t breathe.’ . . .He soon fell silent and lost consciousness.” (P. 9.)
  • “But even after Floyd went limp, Chauvin continued to restrain Floyd’s neck and restraining Floyd’s left hand. Kueng and Lane continued to restrain Floyd’s back and legs.” (P. 9.)
  • At 8:25:20-31 p.m., the “body camera videos appear to show that Floyd’s shallow breaths stopped.” (P. 10.)
  • At 8:25:40-8:26:00 p.m., the “officers maintained their positions—Chauvin on Floyd’s neck, Kueng on his back, Lane on his legs, and Thao standing guard.” (P. 11)
  • At 8:26:12-18 p.m., after Kueng reported he could not find a Floyd pulse and after Floyd did not respond to Chauvin’s squeezing Floyd’s fingers, “Chauvin continued to kneel on Floyd’s neck.” (P. 11.)
  • At 8:27:36-38 p.m., Chauvin “continued to press his knee into the back of Floyd’s neck.” (P. 12.)
  • At 8:27:43-50 p.m., “while emergency personnel leaned down and attempted to check Floyd’s neck for a pulse, Chauvin did not remove his knee from Floyd’s neck.” (P. 12.)
  • At 8:28:45 p.m., “when the stretcher was ready, Chauvin finally removed his knee from Floyd’s neck.” (P. 12.)
  • “All told, Floyd was pinned to the ground—with Chauvin’s knee pressing into his neck, Kueng and Lane atop his back and legs, and Thao standing watch nearby—for approximately nine minutes.” (Pp. 12-13.)

The bulk of this memorandum was the 28 pages of the “Argument” setting forth why the State’s “evidence of 18 prior incidents involving Defendants Chauvin, Kueng, and Thao” Is admissible. (Pp. 15-43.)

Conclusion

EsarlWe now wait to see what happens at the October 15th hearing and how Judge  Cahill resolves these motions. (By the way, another October 12th filing by the prosecution was a supplemental argument for enhanced sentences of these defendants.[3)

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

[1] State’s Motion for Order Temporarily Restricting Public Access to Motions and Exhibits, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Oct. 12, 2000); Olson, Prosecutors seek privacy order to keep details of George Floyd’s 2019 arrest from public view, StarTribune (Oct. 13, 2020)  Gray’s motion is not available on the public website of filings in the Lane case, but the StarTribune obtained a copy since it is a member of the Media Coalition and thus a party in an ongoing dispute over what documents are public in the case. (See Gag Order in George Floyd Murder Cases, dwkcommentaries.com (July 9, 2020); Media Coalition Asks Court To Release BodyCam Footage of George Floyd Killing, dwkcommentaries.com (July 14, 2020).)

[2] State’s Memorandum of Law in Support of Other Evidence, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Oct. 12, 2020); Mannix, Prosecutor: Ex-officers pinned George Floyd for 9 &1/2 minutes, including after they could not find a pulse, StarTribune (Oct. 14, 2020). See also Revised Length of Time for Minneapolis Police Restraint of George Floyd, dwkcommentaries.com (June 18, 2020).

[3] Prosecution’s Supplemental Argument for Enhanced Sentences for Defendants in George Floyd Criminal Cases, dwkcommentaries.com (Oct. 13, 2020).

Prosecution’s Supplemental Argument for Enhanced Sentences for Defendants in George Floyd Criminal Cases

On October 12, the State of Minnesota submitted additional arguments for enhanced sentences for the four former policemen in the event they are found guilty of murder and/or manslaughter in the killing of George Floyd. [1]

Background for This Submission[2]

On August 28, the State submitted its Notice of Intent To Seek an Upward Sentencing Departure in all four of these criminal cases. It alleged that Floyd was particularly vulnerable and was treated with particular cruelty by Chauvin, that Chauvin abused his position of authority, committed the crime as part of a group of three or more offenders who actively participated in the crime and in the presence of multiple children. (Similar assertions were made in notices in the other three criminal cases.)

This notice in the Chauvin case was submitted in accordance with the U.S. Supreme Court’s decision in Blakely v. Washington, 542 U.S. 2996 (2004), which held that the defendant’s Sixth Amendment right to a jury trial can be violated any time the court imposes a sentence greater than that called for in the guidelines, even when the sentence imposed is below the maximum punishment permitted by the legislature.

This submission by the prosecution was argued at the September 11, 2020, hearing before Hennepin County District Court Judge Peter Cahill. Assistant Attorney General Matthew Frank argued that Floyd was particularly vulnerable because he was handcuffed and pinned to the ground. Judge Cahill expressed some skepticism of this point by asking whether what happens during an encounter qualifies for this purpose.

In its Notice of Intent To Offer Other Evidence of 9/10/20, the State said it intended to offer evidence of Chauvin’s eight prior instances of use of excessive force, including use of neck and upper body restraints.  In four of those, Chauvin allegedly used them “beyond the point when such force was needed under the circumstance,” an indication of his pattern, including his restraint of Floyd.

Details of Supplemental Submission

 The supplemental submission answered “yes” to two questions posed by the Court at that hearing.

  1. “Whether the particular vulnerability of the victim justifies an upward sentencing departure when the defendants are responsible for creating the victim’s vulnerability?”

Under Minnesota Sentencing Guidelines 2.D.3.b(1), “When a defendant commits a crime against a victim who was “particularly vulnerable due to . . . reduced physical or mental capacity, and the offender knew or should have known of this vulnerability,” an upward sentencing departure is permissible.”

That standard is met in the current cases because the defendants “handcuffed Floyd’s arms behind his back, pressed him chest-down into the pavement, and rendered him unconscious. As a result, Floyd was “particularly vulnerable” when Defendants committed the crime, and Defendants knew or should have known as much.”

Moreover, the Minnesota Court of Appeals in six cited cases has “upheld the application of this enhancement where the victim became “particularly vulnerable” as a result of a defendant’s actions.”

  1. Whether a defendant’s abuse of a 27-CR-20-12646 Filed in District Court State of Minnesota 10/12/2020 3:09 PM 2 position of authority supports an upward sentencing departure even if there is not a pre-existing relationship of trust between the defendant and the victim?”

The Minnesota Supreme Court and Court of Appeals in cited cases have upheld upward sentencing departure where there are “power imbalances” even when there is no pre-existing relationship between the perpetrator and the victim “so long as the defendant holds either a’a position of trust or [a] position of authority.”

Here, “as police officers in full uniform, Defendants had a ‘defined relationship’ of authority over Floyd, and were ‘in a position to dominate and control’ him. . . . That ‘position of control” ’allowed them to handcuff and restrain Floyd, and therefore to ‘manipulate the circumstances and commit the crime.’”

Reaction to This Submission

Earl Gray, Lane’s defense attorney, said the request for an upward sentencing departure is an attempt to poison the potential pool of jurors. “They first have to get a conviction,” he said. The other defense counsel had no comments or could not be reached.

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

[1] Supplemental Brief in Support of Notice of Intent To Seek an Upward Sentencing Departure, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County District Court Oct. 12, 2020); Olson, Prosecutors want stiff sentences for ex-cops charged in George Floyd’s killing, StarTribune (Oct. 13, 2020).

[2] State’s Notice of Intent To Seek an Upward Sentencing Departure, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020), State’s Notice of Intent To Seek an Upward Sentencing Departure, State v. Lane, Court File No. 27-CR-20-12951 (Hennepin County District Court Aug. 28, 2020); State’s Notice of Intent To Seek an Upward Sentencing Departure, State v. Kueng, Court File No. 27-CR-20-12953(Hennepin County District Court Aug. 28, 2020); State’s Notice of Intent To Seek an Upward Sentencing Departure, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County District Court Aug. 28, 2020).  See also Preview of the 9/11/20 Hearing in George Floyd Criminal Cases, dwkcommentaries.com (Sept. 10, 2020); Results of 9/11/20 Hearing in George Floyd Criminal Cases, dwkcommentaries.com (Sept. 12, 2020).

 

Court Permits Chauvin To Live Out-of-State on Bail 

On October 8, Hennepin County District Court Judge Peter Cahill, based upon in camera evidence supporting safety concerns about Defendant Derek Chauvin, amended the conditions of his release on bail allowing him to live outside the State of Minnesota.[1]The key provisions of this Order are the following:

  • “2. Defendant shall establish residency somewhere in the State of Minnesota or a contiguous state [Wisconsin, Iowa, South Dakota and North Dakota] as soon as possible and immediately report that address to the conditional release officer (CRO)assigned by the Minnesota Department of Corrections. The CRO may share that address internally as necessary within the Minnesota Department of Corrections, and shall also share that address with the Hennepin County Sheriff’s Office Court Security Division captain, prosecutors, and defense counsel. The CRO shall also share the address with the local police department and county sheriff’’ office having jurisdiction over Defendant’s residence address, with a copy of this Order and an instruction that the address be kept confidential. Anyone with knowledge of the Defendant’s residence address shall keep it confidential, except that information may be shared within agencies on a need-to-know basis.”
  • “5. Defendant shall obtain a mobile phone which is to be operational and on his person at all times. Defendant shall maintain cellular service at all times so that his CRO o other representatives of the Minnesota Department of corrections may contact him at any time. Defendant shall answer all calls from the Minnesota Department of Corrections.”
  • “6. Defendant shall sign four copies of a waiver of extradition and provide the signed original documents to the Office of the Minnesota Attorney General.”
  • “7. Defendant shall surrender any passports to his CRO as soon as possible.”
  • “8/ Any requests for warrants for conditional release violations shall be directed to the undersigned judge with copies to the prosecutors and defense counsel.”

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

[1]  Order Amending Conditions of Release, State v. Chauvin, Dist Ct. File 27-CR-20-12646 (Hennepin County District Court Oct.9, 2020);  Browning, City safety concern, judge lets Derek Chauvin live outside Minnesota pending his trial in killing of George Floyd, StarTribune (Oct. 9, 2020).