Resetting State Criminal Trial Date for Kueng and Thao for Killing of George Floyd

On June 6, Hennepin County District Court Judge Peter Cahill, in a well-reasoned opinion, postponed the date for the criminal cases against J. Peter Kueng and Tao Thao  to January 5, 2023.[1]

On June 21, Judge Cahill heard arguments on two motions for changing the date for the start of the trial.

Prosecution’s Motion[2]

The prosecution’s one-page letter merely stated, “On behalf of the family of George Floyd, the state requests a speedy trial as provided in the Victim’s Rights Act, Minn. Stat. sec. 611A.033(a), and Minn. R. Crim. P. 11.09(b).”

Kueng’s Motion[3]

Kueng’s motion requested a continuance to a date after April 3, 2023. For background, his motion stated, “On June 17, 2022 the State entered a speedy trial demand. . . . The State’s demand for a speedy trial followed a teleconference . . . [on June 27] wherein the instant continuance request was discussed [and] Counsel for Mr. Thao has informed the Court that he has no objection to this continuance request.” In addition, “On March 9, 2022 and May 27, 2022 the Court conducted chambers conferences with the parties to discuss plea negotiations, trial scheduling and other matters. During each of those meetings Counsel for Mr. Kueng informed the Court and parties that he was unavailable for trial from January through March 2023. Counsel’s unavailability is due a scheduling conflict of a personal nature.”

The Court’s Decision[4]

After hearing from the attorneys, Judge Cahill apologized to Thomas Plunkett, the attorney for Kueng, that he had forgotten that the attorney previously had told the Judge that he had a personal commitment ‘etched in stone’ in January and that he’d rather give up his law license than miss it. Judge Cahill then announced that he was changing the date for commencement of the trial to October 24, 2022 although he was still weighing the need for publicity from the federal trial and former officer Thomas Lane’s May guilty plea to aiding and abetting manslaughter to die down.

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[1] State Criminal Trial for Thao and Kueng Postponed to January 2023, dwkcommentaries.com (June. 6, 2022); Walsh, State requests speedier start for state trial of ex-officers Thao and Kueng in George Floyd killing, StarTribune (June 20, 2022).

[2] Letter, Frank (Assist. Att. Gen.) to Judge Cahill, June 17, 2022).

[3] Defendant Kueng’s Notice and Motion for Continuance, State v. Kueng, Henn. Cty. Dist. Ct. File No. 27-CR-20-12953 (June 19, 2022).

[4] Olson, Judge agrees to move trial of two former Minneapolis officers to October in George Floyd’s death, StarTribune (June 21, 2022).

State Criminal Trial for Thao and Kueng Postponed to January 2023

On June 6, Hennepin County District Court Judge Peter Cahill granted motions byTou Thao and J. Alexander Kueng to postpone their criminal trials with a new date of January 5 for their commencement. The court also denied the defendants’ motion to change venue and the motion of the Media Coalition to reconsider the court’s previous barring of audio and video coverage of this trial.[1]

The Reasons for Changing the Trial Date

 The Minnesota Supreme Court has recognized that “continuance of a trial date has been recognized as an effective tool to diminish the effect of prejudicial pretrial publicity.” Here, the defendants have cited two such events.

  • First, on May 18, 2022 (less than four week prior to the scheduled start of the trial co-defendant Thomas Lane pled guilty to aiding and abetting second-degree manslaughter. [2]
  • Second, on February 24, 2022, Thao, Kueng and Lane were found guilty by a federal jury of violating George Floyd’s civil rights “based largely on the same evidence as will be introduced in Defendants Thao’s and Kueng’s joint state trial.”[3]

“These two recent events and the publicity surrounding them are significant in they . . could make it difficult for jurors to presume Thao and Kueng innocent of the State charges.” A postponement of the trial for nearly seven months should “diminish the impact of this publicity on the Defendants’ right and ability to receive a fair trial from an impartial and unbiased jury.”

The Reasons for Denial of Change of Venue

Although there has been “saturation news coverage in the Twin Cities in print and broadcast media” of the George Floyd killing and subsequent court proceedings, the same is true “throughout the entire State of Minnesota—not to mention nationally.”

Moreover, “a prospective juror’s exposure to pretrial publicity does not alone create a reasonable likelihood of an unfair trial. . . . Instead, the issue is whether a prospective juror can set aside his or her impressions or opinions based on pretrial publicity, be fair and impartial, and render an impartial verdict.” In addition, this court has taken extensive measures in the earlier Chauvin trial and is now implementing those same measures for the trial of Thao and Kueng.

In addition, postponing the trial to January 2023 will put more than two and one-half years since the killing of Mr. Floyd; more than 20 months since the jury verdict in the Chauvin case; [4] almost eleven months since the jury verdict against Thao and Kueng in the federal civil rights trial; and probably four to six months since their upcoming sentencing in that federal trial.

Finally, this court has continued to impose “appropriate steps to ensure the selection of an impartial jury” and Hennepin County is “the most populous and diverse county in the state.”

The Reasons for Denial of Audio/Video Coverage

“With the reduction in the number of defendants, . . . [the trial courtroom] can now be configured, with the relaxed COVID protocols, to accommodate at least eighteen seats for the public . . . [which] does not amount to a courtroom closure.”

However, “if there is a significant rule change in place by [the commencement of this trial next January], the court would reconsider allowing audio and video coverage.”

Another Consideration

Another consideration favoring the postponement of the trial not mentioned by Judge Cahill was providing additional time for these two defendants, especially after their federal sentencing, to consider attempting to negotiate an agreement with the prosecution for their pleading guilty to the state charges.

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[1] Walsh, State Trial for fired Minneapolis officers Thao, Kueng delayed until January, Star Tribune (June 6, 2022); Order and Memorandum Opinion Concerning Trial, State v. Thao & Kueng, Court Files Nos. 27-CR-20-12949 & 27-Cr-20-12953, Hennepin County District Court (June 6, 2022).

[2] Ex-Officer Thomas Lane Pleads Guilty to State Charge of Aiding and Abetting Manslaughter of George Floyd, dwkcommentaries.com (May 18, 2022). Comment: More Details on Lane’s Guilty Plea, dwkcommentaries.com (May 19, 2022).

[3]  Federal Criminal Trial for Killing George Floyd: Jury Deliberations and Verdict, dwkcommentaries.com (Feb. 25, 2022).

[4] Derek Chauvin Trial: Week Seven (Conviction), dwkcommentaries.com (April 21, 2021); Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment, dwkcommentaries.com (June 28, 2021).

 

Remaining Ex-Cops in Criminal Case Over Killing of George Floyd Ask for Delay and Change of Venue for Trial

On May 31st Defendants Tou Thao and J. Alexander Kueng asked Hennepin County District Court Judge Peter Cahill to postpone their criminal trial now scheduled to start on June 13 to after federal sentencing and to change the venue for the trial to another county outside the Twin Cities.[1] They contend that it will be impossible to select an impartial jury in light of the following recent developments: the recent guilty plea from their co-defendant, Thomas Lane;[2] the February guilty verdicts for all three former officers in federal court;[3] the settling of costly civil rights lawsuits and public comments from politicians like Attorney General Keith Ellison; and the May 31st premier of the PBS Frontline/StarTribune documentary of the George Floyd killing and its aftermath.[4]

The prosecution (State of Minnesota) opposes these motions.[5] It states that this is a belated attempt “to move this case to somewhere else in Minnesota or delay proceedings for yet another year. This newest motion—Defendant Kueng’s fourth such request—does not offer new facts that warrant this court revisiting its earlier decisions and changing course at this late hour. . . . [This] latest filing is nothing more than a last-ditch attempt to evade judgment.”

Conclusion

These motions, in the opinion of this blogger, will promptly be denied.

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[1] Defendant’s Fourth Motion for Change of Venue or Continuance, State v. Kueng, Court File No. 27-CR-20-12953 (May 28, 2022); Notice of Motion and Motion for a Change of Venue or in the Alternative a Motion for Continuance, State v. Thao, Hennepin County District Court, Court File No. 27-CR-20-12949 (May 30, 2022); Mannix, Two former Minneapolis officers charged in George Floyd killing ask judge to delay, relocate trial, StarTribune (May 31, 2022).

[2] Ex-Officer Thomas Lane Pleads Guilty to State Charge of Aiding and Abetting Manslaughter of George Floyd, dwkcommentaries.com (May 18, 2022);

[3] Federal Criminal Trial for Killing of George Floyd: Jury Deliberations and Verdict, dwkcommentaries.com (Feb. 25, 2022).

[4] ‘Frontline’ teams up with StarTribune for documentary on Minneapolis police, StarTribune (May 31, 2022).

[5] State’s Opposition to a Change of Venue or a Continuance, State v. Kueng & Thao, Hennepin County District Court, Court File Nos. 27-Cr-20-12953 & 27-CR-20-12949 (May 30, 2022).

Ex-Officer Thomas Lane Pleads Guilty to State Charge of Aiding and Abetting Manslaughter of George Floyd   

On May 18, 2022, former Minneapolis Police Officer Thomas Lane in state court pleaded guilty to the charge of aiding and abetting manslaughter of George Floyd on May 25, 2020. [1]

Before Hennepin County District Court Judge Peter Cahill, this guilty plea was part of a plea agreement which dismissed the separate charge of aiding and abetting second-degree murder and for a sentence of three years imprisonment in federal prison to be served concurrently with his upcoming sentence for his February 2022 conviction in federal court for violating Floyd’s civil rights. The state court sentencing is scheduled for September 21.[2]

Minnesota Attorney General Keith Ellison issued a statement saying, “Today my thoughts are once again with the victims, George Floyd and his family. Nothing will bring Floyd back. He should still be with us today.” Ellison then said, “I am pleased Thomas Lane has accepted responsibility for his role in Floyd’s death. His acknowledgment he did something wrong is an important step toward healing the wounds of the Floyd family, our community, and the nation. While accountability is not justice, this is a significant moment in this case and a necessary resolution on our continued journey to justice.”  Lane’s attorney, Earl Gray, however, declined to comment on this development.

Two other ex-MPD officers, Tou Thao and J. Alexander Kueng still face state charges of aiding and abetting second-degree murder and manslaughter in Floyd’s death. That trial is scheduled to commence on June 13. [3]

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[1] Olson, Ex-MPD officer Thomas Lane pleads guilty to manslaughter charge for role in George Floyd’s murder, StarTribune (May 18, 2022); Forlitti & Karnowski (AP), Ex-cop pleads guilty to manslaughter in George Floyd killing, Wash. Post (May 18, 2022); Ex-Minneapolis police officer pleads guilty to manslaughter in George Floyd’s death, NBC News (May 18, 2022); Minnesota Attorney General, ‘Pleased Thomas Lane has accepted responsibility ‘: Attorney general Ellison statement on guilty plea in death of George Floyd (May 18, 2022). Apparently in April, Lane, Kueng and Thao rejected a plea deal (details not publicly available) offered by the Minnesota Attorney General’s Office. (Jimenez, 3 former police officers charged in George Floyd’s death reject plea deal, CNN.com (April 13, 2022).

[2] Federal Criminal trial for Killing George Floyd: Jury Deliberations and Verdict, dwkcommentareis.com (Feb. 25, 2022).

[3] Hennepin County District Court Enters Order Regarding Trial of Three Former Minneapolis Policemen Over Killing of George Floyd, dwkcommentaries.com (April 30, 2022).

Hennepin County District Court Enters Order Regarding Trial of Three Former Minneapolis Policemen Over Killing of George Floyd 

On April 25, 2022, Hennepin County District Court Judge Peter A. Cahill issued the Trial Scheduling and Management Order and Memorandum Opinion regarding the June 13, 2022, commencement of the trial of three former Minneapolis policemen (Tou Thao, Thomas Kiernan Lane and J. Alexander Kueng) over the killing of George Floyd on May–, 2020.[1]

Trial Management Order

  1. Specified information about any expert witnesses not previously disclosed shall be submitted by May 1, 2022.
  2. Motions in limine shall be submitted by May 13, 2022, with supporting memoranda by May 20 and responsive memoranda by June 3.
  3. Trial witness lists shall be submitted by May 13, 2022.
  4. Trial exhibit lists and proposed jury instructions shall be submitted by June 10, 2022.
  5. Trial will commence at 9:00 a.m. on June 13, 2022, in Hennepin County Courtroom C-1856.
  6. Limits at trial on the number and conduct of the parties’ attorneys or support staff were specified.
  7. Limits at trial on the number and conduct of spectators at trial for the Media Coalition and the George Floyd and defendants’ families were specified.
  8. Hearing on motions in limine or administrative matters will be heard on June 13, 2022, and, if necessary, on subsequent days.
  9. Jury selection will begin on June 14, 2022.
  10. Jurors and potential jurors shall be partially sequestered.
  11. Opening statements and presentation of evidence will begin on July 5, 2022.
  12. Witnesses, prior to testifying, shall be sequestered.
  13. Audio and video recording and livestreaming of the trial will not be allowed except as expressly permitted by Minn. R. Gen. P. 4.02(d).
  14. At least three overflow courtrooms with audio and video feed from the trial courtroom will be provided for family members of George Floyd and the defendants, the media and the public.

The Court’s Memorandum Opinion

The last 27 pages of this Court document set forth the legal bases for the following conclusions:

  • The Minnesota Rules of Practice Do Not Currently Authorize Livestreaming of Trials Over the Objection of a Party;
  • The Unusual and Compelling Circumstances of the Covid-19 Pandemic at the Time of the Chauvin Trial Have Substantially Abated and the Supreme Court Rules in Force in the First Half of 2021 Mandating Social Distancing, Mask Wearing, and Other Precautionary Measures Due to the Covid-19 Pandemic Are No Longer in Force, Obviating Resort to Rule 1.02;
  • This Court Now Is Precluded by Rule 4.02(d) from Ordering Livestreaming of the Trial Over Objections of the Defendants; and
  • Partial Jury Sequestration Is Appropriate.

Reactions [2] 

An attorney for the Media Coalition, which wanted livestreaming of the trial, said that this order was “deeply disappointing [because] thousands of people interested in this important trial won’t be able to watch it. The court’s decision is based on its view that, with the world returning to normal after the pandemic, it must revert to Supreme Court rules that require everyone involved to consent to cameras before they are allowed. The defendants don’t consent. Our Supreme Court needs to change the rule. They are working on it. I wish they could have worked faster.”

Minnesota Assistant Attorney General, Matthew Frank, in a motion before the issuance of this order, said that prohibiting a livestream after allowing one during Chauvin’s trial could harm public confidence in the process. “In the public’s mind, this trial and Chauvin are linked. If this court eliminates audio-visual coverage at this late hour, the broader public may receive the unintended message that they no longer have the right to observe proceedings.”

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[1] Trial Scheduling and Management Order and Memorandum Opinion, State v. Thao, Lane & Kueng, Hennepin County District Court files 27-CR-20-12949, 27-CR-20-12951, 27-CR-20-12953 (April 25, 2022).

[2] Mannix, Judge: Trial of 3 ex-Minneapolis police officers in George Floyd death won’t be livestreamed, StarTribune (April 26, 2022); Karnowski (AP), Trial of 3 ex-officers in Floyd death won’t be livestreamed, StarTribune (April 26, 2022).

Postponement of State Court Trial of Ex-Policemen for Killing of George Floyd                 

On January 12, 2022, Hennepin County District Court Judge Peter Cahill postponed the commencement of the state trial of three Minneapolis ex-policemen (J. Alexander Kueng, Thomas Lane and Tou Thao) on charges of aiding and abetting the May 2020 second-degree murder and manslaughter of George Floyd. [1]

The Judge ordered the parties’ attorneys to meet before January 16 to select a new trial date between March 14, 2022 and January 9, 2023. If they cannot agree on a new date, the trial will start on March 7 as previously scheduled.

In the meantime, the three men are scheduled to go on trial in federal court starting January 20 on charges of violating Mr. Floyd’s civil rights during his arrest. If that trial has not concluded by the new date for the state trial, the latter shall be continued on a daily basis until the attorneys are available.

In addition, Judge Cahill stated that in the state case the attorneys should set aside three weeks for jury selection and five weeks for trial testimony.

All of these developments happened after the state court trial, conviction and sentencing of Derek Chauvin to 22.5 years imprisonment for second-degree and third-degree murder and second-degree manslaughter of Mr. Floyd.[2] And then in mid-December 2021 Chauvin unexpectedly pleaded guilty to the federal charges against him over the killing of Mr. Floyd with Chauvin to serve the state and federal sentences concurrently in a federal prison.[3] Thus ended Chauvin’s criminal charges and trials over Floyd’s death.

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[1] Xiong, State trial of three officers charged in George Floyd killing postponed from March date, StarTribune (Jan. 12, 2022); Order Granting Joint Request To Continue Trial Date, State v. Thao, Lane, Kueng, Henn. Cty Dist. Ct., File Nos. 27-CR-20-12949, 12951 & 12953 (Jan. 12, 2022).

[2]  See the “Derek Chauvin State Criminal Trial” and “State Court Sentencing of Derek Chauvin” sections of List of Posts to dwkcommentaries—Topical: George Floyd Killing.

[3] Derek Chauvin Pleads Guilty to Federal Criminal Charges Over Killing of George Floyd, dwkcommentaries.com (Dec. 16, 2021).

Judge Orders Release of Jurors Names in Derek Chauvin Trial

On October 25, Hennepin County District Court Judge Peter Cahill ordered the release on November 1 of the names of the 12 jurors who signed the guilty verdict in the trial of Derek Chauvin earlier this year plus (a) the names of the two alternate jurors who were excused before jury deliberations commenced; (b) the names of the other 109 prospective jurors; (c) the questionnaires filled out by all of these individuals; and (d) the original jury verdict form signed by the jury foreperson. [1]

The Order had the following limitations: (a) the addresses and other contact information for the 14 sworn and alternate jurors will not be made public; (b) the Court reserves the right to redact from the completed juror questionnaires certain information, consistent with discussions with some of the jurors during voire dire, from the copy of the questionnaires publicly filed pursuant to this order; and (c) the information and documents being made public will only be available for inspection and copying at the Hennepin County Government Center; no remote access.

The Judge’s 31-page Order and Memorandum, which was soundly reasoned and well written, provided the background and reasons for this order. It set forth with abundant legal citations the Court’s legal conclusion:

  • “Although there is no absolute right of the press or public to access all records and information contained in court records in criminal cases, judicial records are presumptively public under Minnesota’s applicable court rules and the common law, warranting granting public access to some of the requested juror information sought by the Media Coalition in light of the present facts and circumstances of this case.”

This legal conclusion was based upon the Court’s balancing “on a case-by-case basis . . . [of the following] competing considerations . . . the defendant’s constitutional rights to a public trial before a fair and impartial jury, the public interest in access to open judicial proceedings to monitor the manner in which justice is being administered, the press’ First Amendment rights, and jurors’ privacy interests and rights.”

This Order was prompted by a motion for such disclosure submitted by the Media Coalition of 16 local and national media organizations.

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[1]  Olson, & Xiong. Court order: Chauvin jurors’ names to be released Nov. 1 at courthouse, StarTribune (Oct. 25, 2021); Assoc. Press, Judge in Chauvin trial to release names of Jurors on Nov. 1, StarTribune (Oct. 25, 2021); Order and Memorandum Opinion on Media Coalition Motion To Unseal Juror Names and Associated Juror Information, State v. Chauvin, Henn. County Dist. Ct. File No. 20-12646 (Oct 25, 2021).

 

 

 

Derek Chauvin Appeals His Conviction and Sentencing for Second-Degree Murder of George Floyd         

On September 23, 2021, Derek Chauvin initiated his appeal to the Minnesota Court of Appeals from the Hennepin County District Court ‘s June 25th Sentencing Order and Memorandum Opinion holding him guilty of second-degree murder of George Floyd and sentencing Chauvin to 22.5 years imprisonment for that crime.[1]

The document initiating this appeal was Chauvin’s Statement of the Case of Appellant.[2] It stated the following issues for the appeal:

“(1) The District Court abused its discretion when it denied Appellant’s motion for change of venue or a new trial;

(2) The District Court abused its discretion when it denied Appellant’s motion for a continuance or a new trial;

(3) The District Court abused its discretion when it denied Appellant’s motions to sequester the jury throughout trial;

(4) The State committed prejudicial prosecutorial misconduct;

(5) The District Court prejudicially erred when it concluded that the testimony of Morries Hall, or in the alternative Mr. Hall’s statements to law enforcement, did not fall under Minn. R. Evid. 804(b)(3) and was not a violation Appellant’s constitutional confrontation rights;

(6) The District Court prejudicially erred when it permitted the State to present cumulative evidence with respect to use of force;

(7) The District Court abused its discretion when it ordered the State to lead witnesses on direct examination;

(8) The District Court abused its discretion when it failed to make an official record of the numerous sidebar conferences that occurred during trials;

(9) The District Court abused its discretion when it failed to allow Appellant to exercise several cause strikes for clearly biased jurors during voir dire;

(10) The District Court abused its discretion when it permitted the State of amend its complaint to add the charge of third-degree murder;

(11) The District Court abused its discretion when it strictly limited and undercut the admissibility of George Floyd’s May 6, 2019 arrest;

(12) The District Court abused its discretion when it submitted instructions to the jury that materially misstated the law;

(13) The District Court abused its discretion when it by denying Appellant’s motion for a Schwartz hearing;

(l4) The District Court abused its discretion when it denied Appellant’s post-verdict motion for a new trial due to juror misconduct.”

These issues will be presented and argued with citations to legal precedents and the trial record in the subsequent briefs and oral arguments of the parties.

However, a practical problem for Chauvin is the inability of his trial counsel, Eric Nelson, to represent him on this appeal because the Minnesota Police and Peace Officers Association, which had paid Nelson’s attorneys’ fees for Chauvin’s pretrial and trial proceedings, does not pay such fees for appeals after conviction and Chauvin does not have the financial ability to pay for appellate counsel. As a result, on September 23, District Judge Peter Cahill entered an Order Granting In Forma Paupereris Application of Mr. Chauvin. Now Chauvin awaits the Minnesota Supreme Court’s action on his application to reverse its earlier decision denying him a public defender to represent him on this appeal.

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[1] Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment, dwkcommentaries.com (June 28, 2021); Forlitti (AP), Chauvin to appeal conviction, sentence in Floyd’s death, Wash. Post (Sept. 23, 2021); Chhith, Derek Chauvin appeals his conviction in George Floyd’s death, StarTribune (Sept. 23, 2021).

[2] Statement of the Case of Appellant, State v. Chauvin, Minnesota Court of Appeals Case No. A21-1228 (Sept. 23, 2021).

Federal Criminal Case Over George Floyd Killing: Requests To Sever Chauvin Case from Three Co-Defendants Case 

On April 20, 2021, the  first criminal trial over the killing of George Floyd resulted in a Minnesota state court jury verdict holding former Minneapolis police officer Derek Chauvin guilty on counts of second-degree murder, third-degree murder and second-degree manslaughter.  On June 25, 2021, Minnesota District Court Judge Peter Cahill sentenced Chauvin to 22.5 years imprisonment for these crimes. [1]

Since then the Minnesota state court has handled various issues relating to the Chauvin conviction and sentencing while also preparing for the criminal trial in March 2022 of the other three former Minneapolis police officers involved in the killing of Mr. Floyd (J. Alexander Kueng, Thomas Lane and Tou Thao).[2]

Federal Criminal Cases Over the Killing of George Floyd[3]

In the meantime, on May 6, 2021, the U.S. Department of Justice filed in the U.S. District Court in Minneapolis an indictment against Chauvin and these other three former Minneapolis police officers. These were the charges:

  • Count 1 charged Derek Chauvin, “while acting under color of law . . . willfully deprived George Floyd of the right, secured and protected by the Constitution and laws of the United States, to be free from an unreasonable seizure, which includes the right to be free from the use of unreasonable force by a police officer.”
  • Count 2 charged Tou Thao and J. Alexander Kueng, “acting under color of law, willfully deprived George Floyd of the right, secured by the Constitution and laws of the United States, to be free from an unreasonable seizure . . . [by failing] to intervene to stop . . . Chauvin’s use of unreasonable force.”
  • Count 3 charged all four defendants, “while acting under color of law, willfully deprived George Floyd of the right, secured and protected by the Constitution and laws of the United States, not to be deprived of liberty without due process of law, which includes an arrestee’s right to be free from a police officer’s deliberate indifference to his serious medical needs [when they saw ] George Floyd lying on the ground in clear need of medical care, and willfully failed to aid Floyd, thereby acting with deliberate indifference to a substantial risk of harm to Floyd.”

Also on May 6, 2021, the Department of Justice filed in the federal court in Minneapolis another indictment of Chauvin for alleged use of unreasonable force against a juvenile in 2017. But the other three former Minneapolis policemen were not involved in this case.

Motions To Sever the Federal Chauvin Case from That Case Against the Other Three Ex-Cops[4]

As of August 4, 2021, the docket sheet for the federal case over the killing of Mr. Floyd had 104 entries, almost all of which are preliminary matters not requiring comments here.

However, on August 3, defendants Thao, Kueng and Lane filed motions to sever their cases from the one against Chauvin, Thao’s motion had the following most extensive statement pf reasons for severance:

  1. The defendants were “not properly joined under Rule 8(b) of the Federal Rules of Criminal Procedure,” which allows charging “2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.”
  2. “The jury will have insurmountable difficulty distinguishing the alleged acts of each defendant from the alleged acts of his co-defendants.”
  3. ”Evidence may be introduced by each defendant which would be inadmissible against other defendants in a separate trial to the prejudice of these defendants.”
  4. “The counts of the indictment are not properly joined under Rule 8(a) of the Federal Rules of Criminal Procedure,which allows charging “a defendant in separate counts with 2 or more offenses if the offenses charged—whether felonies or misdemeanors or both—are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.”
  5. “Mr. Thao’s Fifth Amendment right to not incriminate himself will be prejudiced by the joinder of the counts.”
  6. “Evidence which would be inadmissible were the counts tried separately, may be admitted and considered by the jury to the prejudice of Mr. Thao.”
  7. “The jury will have insurmountable difficult distinguishing evidence presented on one count from that evidence presented on other counts, and will inevitably consider the evidence cumulatively.”
  8. “Mr. Thao will obtain a fair and more impartial Trial [if] he is tried separately from his co-defendants.”

As other filings however, make clear, the U.S. opposes the severance motions but agrees to abide by any order the Court may issue on these motions. However, “a decision on severance is pre-mature,” and all parties “jointly ask that [these] motions[s] be reserved until a point in the future when information relevant to severance of Mr. Chauvin becomes more developed.[5]

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[1] Derek Chauvin Trial: Week Seven (CONVICTION), dwkcommenbtaries.com (April 21, 2021); Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment, dwkcommentaries.com (June 28, 2021).

[2] Xiong, State trial postponed to March 2022 for ex-officers charged with aiding and abetting murder in George Floyd death, StarTribune (May 13, 2021);  Bailey, Trial for 3 former officers charged in George Floyd murder delayed until March, Wash. Post (May 13, 2021); Furber, Judge Delays Trial for Other Officers Charged in Killing of George Floyd, N.Y. Times (May 13, 2021).

[3] Federal Court Charges Against Ex-Minneapolis Policemen Over George Floyd’s Killing, dwkcommentaries.com (May 7, 2021); Federal Criminal Cases Against Ex-Minneapolis Copes for George Floyd Death: Initial Proceedings, dwkcommentaries.com (June 2, 2021).

[4] Forliti (AP), Ex-cops charged in Floyd death want separation from Chauvin, StarTribune (Aug. 3, (2021); Xiong, Former Minneapolis officers request separate federal trial from Derek Chauvin, StarTribune (Aug. 3, 2021); Motion for Severance. United Sates v. Thao, U.S. Dist. Ct., Dist. Minn. File No. 21-CR-108(2) (Aug. 3, 2021); Defendant’s Pretrial Motion for Severance of Derek Chauvin (Defendant 1), U.S. v. Kueng, U.S. Dist. Ct., Dist. Minn. File No. 21-CR-108(2) (Aug. 3, 2021); Motion To Join Co-Defendants Pretrial Motions, U.S. v. Lane, U.S. Dist. Ct., Dist. Minn. File No. 21-CR-108 (Aug. 3, 2021).

[5] Defendant’s Meet and Confer Notice, U.S. v. Kueng, U.S. Dist. Ct., Dist. Minn. File No. 21-CR-108(2) Aug. 3, 2021.See generally List of Posts to dwkcommentaries—Topical: George Floyd Killing.

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).