Results of 9/11/20 Hearing in George Floyd Criminal Cases

Information about what happened at the 9/11/20 hearing is provided by many media reports.[1] Here is a summary of those reports, again following the court’s Agenda for the hearing.

State’s Motions

Joint Trial. The State’s arguments were presented by Special Assistant Attorney General Neal Katyal, the famous attorney, law professor and commentator from Washington, D.C. He argued that the evidence against all four defendants is similar, that witnesses and family members are “likely to be traumatized by multiple trials” and that the interests of justice necessitate a single trial because separate trials would taint future juries. He also said, “The defendants watched the air go out of Mr. Floyd’s body together. And the defendants caused Mr. Floyd’s death together.”

Thao’s attorney responded to the last point by arguing that the jury pool already has been tainted by comments about the case by Attorney General Ellison and others.

A St. Paul attorney who is not involved in the case, Paul Applebaum, said, “it’s going to be tough for the defense attorneys to get the cases separated, partly because it would be difficult for Chauvin to blame the other officers for the charges of murder and manslaughter against him, but also because of the burden of holding four separate trials.”

Aggravating Factors for Upward Sentencing. 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.[2]

Defendant’s Motions

 Motions for Change of Venue. Judge Cahill said it was too early to decide on a change of venue for the trial. He noted that Hennepin County District Court has been sending questionnaires to potential jurors to complete at home because of COVID risks and for the sake of expediency and that the court could start polling potential jurors ahead of the scheduled March 8 trial.

But two of the defense attorneys argued that the questionnaires should be completed in person at the courthouse because it carries more weight and meaning. Assistant Attorney General Matthew Frank agreed.

In response to defense arguments about adverse public opinion in Hennepin County, the Judge asked one of them, “There really isn’t a country, would you agree, or a state in this country where there hasn’t been a lot of publicity about George Floyd’s death?”

Jury Sequestration. The Judge said “it would be almost cruel to keep them in on weeks at a time. Instead, he suggested they be “semi-sequestered:”  jurors 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.

Motion to Disqualify HCAO [Hennepin County Attorney’s Office]. From the bench Judge Cahill said the HCAO’s work “sloppy” because they sent prosecutors to question the medical examiner, making them witnesses in the case. Therefore, he disqualified County Attorney Freeman and three assistants who questioned the Examiner because they are potential witnesses. However, others from the Office were not disqualified.

Afterwards Freeman and the Minnesota Attorney General requested reconsideration of this decision, which Judge Cahill granted. The request stated, “Any suggestion by Judge Cahill that the work of . . . [two Assistant County Attorneys] was sloppy was incorrect. The . . .[HCAO] fully stands by the work, dedication and commitment of two of the state’s best prosecutors. That third party mentioned by Judge Cahill does not need to be a non-attorney. [The two attorneys in question] asked to leave the case on June 3 and Frank [the other attorney in question] is the attorney of record, making . . .[the other two attorneys] valid third-parties and eligible to be called as witnesses by the defense. This HCAO decision is consistent with the relevant Minnesota Supreme Court case.

Rule 404 Evidence Motions. The Judge denied defense’s intent to offer evidence regarding Floyd’s arrest and conviction in Texas as it was irrelevant. He also denied the defense request for evidence regarding Floyd’s 05/06/19 medical incident at the Hennepin County Medical Center although he said it could come up at a later date.

Administrative Matters

Jury Selection. The Judge said that he anticipates jury selection will take two weeks with each prospective juror to take the witness stand for questioning by the attorneys.

COVID-19 Restrictions. The Judge said these restrictions would be in place with overflow rooms for family and press.

Trail Length. The Judge said he anticipates a four-week trial.

Conclusion

Although I was not in the courtroom to observe the Judge, the journalists’ reports suggest that the Judge is leaning towards a consolidated trial of all four defendants in Hennepin County under his supervision.

During the 3.5 hour hearing a highly organized, peaceful group of several hundred protesters gathered in front of the heavily fortified Family Justice Center. At first they laid silently on the ground for eight minutes and 46 seconds, which was the initially reported duration of the police pinning of Floyd on the pavement on May 25th (that figure was incorrect; the corrected number is seven minutes and 46 seconds).[3] When they rose, Marvin Gaye’s recorded voice sang, “Mother, mother, there’s too many of you crying” (the first verse from the late singer’s 1970 song “What’s going on”).

The protesters then repeatedly chanted, “Indict, Convict, Send These Killer Cops to Jail. The Whole Damn System Is Guilty As Hell!” Another call was “Say his name!” with the “George Floyd” response. Another: “Who killed him?” and “MPD.” The messages on their signs included the following: “No clemency for killer kkkops” and “Recall Freeman” and a reconfigured MPD badge to say “Murderous City of Lakes Police.”

When Lane and Kueng and their attorneys left the building, they were met by protestors yelling “Murderer!” The crowd then remained until Floyd’s family members left the building, and many of the protestors turned into a dance line, including the Electric Slide.

The protestors apparently are not aware that their protests are ammunition for the defendants’ arguments for transferring the cases to another county, where emotions are not so virulent. The protestors should adopt a different strategy.

After the hearing, Ben Crump, an attorney for the Floyd family, publicly expressed outrage over defense suggestions that Floyd’s use of drugs or earlier run-ins with the police were relevant to the killing of Floyd. “The only overdose was an overdose of excessive force and racism. It is a blatant attempt to kill George Floyd a second time.”

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[1]  Xiong & Olson, Judge disqualifies some in Mike Freeman’s office for ‘sloppy work’ in George Floyd case, StarTribune (Sept. 11, 2020); LIVE UPDATES: Tentative 2-week jury selection, 4-week trial format for George Floyd case, kstp.com (Sept. 11, 2020); Judge In Floyd Case Disqualifies Members of Hennepin co. Attorney’s Office, minnesota.cbslocal.com (Sept. 11, 2020); Olson, Protestors confront former Minneapolis police officers with shouts of ‘murderer,’ StarTribune (Sept. 11, 2020); Protestors Shout At Former MPD Officers As They Exit Pretrial Hearing in George Floyd Case, minnesota.cbslocal.com (Sept. 11, 2020); Collins & Williams, George Floyd killing: Judge disqualifies Freeman from cops’ trial, MPRNews (Sept. 11, 2020); Read Hennepin County Attorney Mike Freeman’s response to being disqualified from George Floyd case, StarTribune (Sept. 11, 2020); Furber, Arango & Eligon, Police Veteran Charged in George Floyd Killing Had Used Neck Restraints Before, N.Y. Times (Sept. 11, 2020); Bailey, Prosecutors allege former Minneapolis officer used neck restraint in several other cases before George Floyd’s death, Wash. Post (Sept. 11, 2020); George Floyd’s Family Lawyer Pushes Back on Police Claims (video), N.Y.Times (Sept. 11, 2020); Officers charged in George Floyd killing seek to place blame on one another, Guardian (Sept. 11, 2020).

[2] State’s Notice of Intent To Offer Other Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin county District Court Sept. 10, 2020).

[3] Revised Length of Time for Minneapolis Police Restraint of George Floyd. dwkcommentaries.com (June 18, 2020).

 

More Details on 9/11/20 Hearing in George Floyd Criminal Cases

Yesterday’s post and comment provided a preview for today’s hearing.[1] Here are some more details for the hearing, again following the Agenda for the hearing.

State’s Motions

  1. Motion for Joint Trial.[2]

On September 10, the State submitted a 28-page reply in support of its motion for a joint trial, but time constraints do not allow for its examination and summary in this post.

One of the issues for this motion is whether or not the defendants have antagonistic defenses. Here are more details on that issue.

Chauvin’s attorney has said that his client did not know the full picture of what was happening when he and Thao arrived later on the scene to find Lane and Kueng struggling to get Floyd into the back seat of their squad car. The attorney also suggested that these other two had mishandled the scene by not doing enough to try to calm Floyd, by failing to administer naloxone and by  delaying the request for an ambulance and thereby causing the death.

Chauvin and Thao also may argue that as late arrivals on the scene they were deferring to Lane and Kueng irrespective of their lack of seniority and rank.

Thao will emphasize his “human traffic cone” role while the other three were physically restraining Floyd.

Lawyers for Lane and Kueng, both rookies, have emphasized that they were following the orders of their superior, Chauvin, and that Lane twice tried to intervene to get Floyd turned over, but Chauvin refused. Kueng also may testify about faulty training by Chauvin on how to handle a detention while Kueng and Thao may point to the history of 18 complaints about Chauvin’s conduct as an officer.

Lane’s attorney said, “It is plausible that all officers have a different version of what happened and officers place blame on one another.”

All four, however, apparently are arguing that Floyd’s death was accelerated by drugs in his system

Defendants’ Motions

  1. Discovery Motions.[3]

Late on September 9, the State submitted a response to such motions from all four defendants. Here are its main points:

  • The State already had disclosed the Hennepin County Medical Examiner’s complete file and that although the State had no obligation to disclose the autopsy reports by the Armed Forces Medical Examiner and by experts retained by the Floyd family (Drs. Baden and Wilson), the State had asked these persons for these documents and if they are so provided, the State would provide them to the defendants.
  • With respect to Floyd’s 5/5/19 incident with the MPD, the State had requested any body worn camera footage from the MPD and, if it exists, it would be provided; the Hennepin County Attorney’s Office has no record of a referral for prosecution; and any other prosecuting agencies are not within the State’s control.
  • The State stated there is no factual basis for the request for documents on Floyd’s acting as an informant and gang affiliations and the requests were denied.
  • If possible, the State will produce the MPD training PowerPoints in the original format.
  • The State denied the request for the State’s document indices as privileged attorney work product.
  • The State already has produced the MPD Internal Affairs Public Summaries for all four defendants, but opposes any other disclosure.

Conclusion

On a separate note, there are planned protests near the courthouse on the day of the hearing. As a result, windows on government buildings have been boarded up and law enforcement officials are setting up a perimeter to keep protesters at a distance.

In fact, the hearing will be held in the nearby Family Justice Center, where the Hennepin County Family Court is located, in downtown Minneapolis.

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

[1] Preview of 9/11/20 Hearing for George Floyd Criminal Cases, dwkcommentaries.com (Sept. 10, 2020); Comment: Rule 44 Evidence Motions: More Details, dwkcommentaries.com (Sept. 10, 2020). See also Xiong, Several key issues at stake Friday morning in Hennepin County court hearing in George Floyd case, StarTribune (Sept. 10, 2020).; Collins, Judge to hear arguments Friday in Floyd killing case, MPRNews (Sept. 11, 2020).

[2]  State’s Reply in Support of Motion for Joinder, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin county District Ct. Sept. 10, 2020); Bailey, Former Officers charged in George Floyd killing turn blame on each other, Wash. Post (Sept. 10, 2020),

[3] State’s Response to Defendants’ Motions To Compel Disclosure, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin county District Ct. Sept. 9, 2020)

Preview of  the 9/11/20 Hearing in George Floyd Criminal Cases

This preview will follow the Agenda for the 9/11/20 hearing in the four George Floyd criminal cases that has been set by the Hennepin County District Court Judge Peter Cahill.[1]

State’s Motions

  1. Motion for Joint Trial[2]

On August 12, the State asked the court to consolidate all four of the cases for one trial on the grounds that the charges and evidence in all four cases are similar; that there would be less negative impact on witnesses and family members; the defenses of the four ex-officers were not antagonistic; and the interests of justice would be advanced.

Unsurprisingly all of the four defendants are opposing this motion. Here is a summary of their arguments: Chauvin: other defendants likely to blame Chauvin, whose defenses are likely to blame the others and thus they are mutually antagonistic; trying Chauvin first is the sensible approach which would dictate the need for, and scope of, any other trials. Kueng: different evidence on whether and how the defendants worked in close concert; no particularly vulnerable witnesses; antagonistic defenses; interests of justice do not favor joinder. Lane: likely antagonistic defenses with each defendant having different version of what happened and who is to blame, forcing jury to choose between defendants’ testimonies. Thao: Minnesota has favored separate trials; unknown if “overwhelming majority” of evidence will be same in all the cases; Thao did not work in close concert with the others; impact on Floyd family is not a factor; nature of Floyd’s death does not favor joinder; antagonistic defenses are highly likely; COVID-19 favors separate trials with smaller gatherings at each.

  1. Motion to Submit Aggravating Factors to Jury (Blakely)[3]

Under Blakely v. Washington, 542 U.S. 2996 (2004), the U.S. Supreme Court 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.

On August 28, the State gave notice of its intent to seek an upward sentencing departure for Chauvin on the grounds 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.

  1. Motion for Expert Witness Disclosure[4]

On August 28, the State moved for establishing deadlines of disclosure of expert witnesses with the following suggestions: Initial Expert Disclosures (12/08/20) and full Expert Disclosures (01/08/21).

Defendants’ Motions

  1. Motions for Change of Venue[5]

All four defendants have moved for change of venue with the following arguments: Chauvin (excessive pretrial publicity in Twin Cities); Lane (transfer to Washington or Dakota County because fair trial impossible in Hennepin County); Thao (fair trial impossible In Hennepin County; change to St. Louis, Clay or Crow Wing County); Kueng (prejudicial publicly in Hennepin County; change to  another county “outside the seven-county metro area, such as Stearns County or another county with appropriate facilities and demographics”).

  1. Jury Sequestration and Anonymity Motion[6]

On August 28, Thao moved for jury sequestration and juror anonymity due to “the notoriety of the case.”

  1. Motion to Disqualify HCAO [Hennepin County Attorney’s Office][7]

The only apparent motion to disqualify the HCAO was filed on August 6 by the attorney for Kueng on the ground that the County Attorney had made prejudicial comments about the defendants, and the very next day (August 7) Judge Cahill denied the motion.

Thus, this must be an erroneous agenda item.

  1. Rule 404 Evidence Motions[8]

On August 27, Kueng gave notice that he may offer at trial evidence regarding  (1) the circumstances of (a) Floyd’s 05/06/19 arrest by MPD; (b) Floyd’s 05/06/19 medical intervention at Hennepin County Medical Center; and (c) Floyd’s 08/09/07 arrest and subsequent conviction in Texas for Aggravated Robbery with a Deadly Weapon.

  1. Discovery Motions[9] On August 24, Thao filed a motion to compel discovery of the following regarding the investigation and death of Floyd; (1) complete Hennepin County Medical Examiner’s Office file; (2) any and all reports and autopsies performed by Dr. Michael Baden; (3) any and all reports and autopsies performed by Dr. Allecia Wilson; and (4) entire Office of the Armed Forces Medical examiner file.

On August 28, Chauvin filed a motion for the State’s disclosure of (1) body worn camera/audio from MPD CN-201 9-127538 from Floyd’s arrest; (2) files pertaining to Floyd’s cooperation as an informant for the MPD, FBI or any other state or federal law enforcement agency; (3) files documenting Floyd’s activity as a gang member or affiliate within the past five years; (4) information regarding Floyd’s 05/06/19 drug possession/sale investigation; (5) training materials with active imbedded links to video portions; and (6) index to State’s document disclosures.

Administrative Matters

  1. Jury Selection
  • Method
  • Preemptory Challenges
  1. In-Court Presence/COVID-19 Restrictions
  2. Overflow rooms/Audio-Visual Coverage
  3. Overnight/Special Transcript Requests
  4. Trial Length/Daily Schedule

Substantive Matters

The Judge already has announced that the only substantive matters—the four defendants’ motions to dismiss for alleged lack of probable cause for the criminal charges—will be decided on the briefs and factual record without argument at the hearing.[10] The only new details on these motions is the State’s recent opposition to Defendant Kueng’s dismissal motion and its future opposition to the recent Chauvin motion. [11]

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[1] Agenda for Court’s 9/11/20 Hearing in George Floyd Criminal Cases, dwkcommentaries.com (Sept, 2, 2000); Comment: More Informed Reaction to Agenda, dwkcommentaries.com (Sept. 7, 2020).

[2] Prosecution Requests One Trial for the Four Former Policemen Charged with Floyd Killing, dwkcommentaries.com (Aug. 13, 2020); Chauvin’s Memorandum of Law Opposing the State’s Joinder Motion, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Sept. 8, 2020); Lane’s Defense Objection to State’s Motion for Joinder, State v. Lane, Court File No. 27-CR-20-12951 (Hennepin County Dist. Ct. Sept. 8, 2020); Kueng’s Objection to the State’s Motion for Joinder, State v. Kueng Court File No. 27-CR-20-12953 (Hennepin County Dist. Ct. Sept. 8, 2020); Thao’s Memorandum in Opposition to State’s Motion for Joinder, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County Dist. Ct. Sept. 8, 2020);  Xiong, Attorneys for former officers in George Floyd murder case want separate trials, StarTribune (Sept. 8, 2020).

[3]  State’s Notice of Intent To Seek an Upward Sentencing Departure, State v. Chauvin, et al.,Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Aug. 28, 2020).

[4] State’s Notice of Motion and Motion for Expert Disclosure Deadlines, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Aug. 28, 2020).

[5] Chauvin’s Notice of Motions and Motions To Change Venue and Reserve Ruling, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Aug. 28, 2020); Lane’s Notice of Motion and Motion To Change Venue, State v. Lane, Court File No. 27-CR-20-12951 (Hennepin County Dist. Ct. Sept. 8, 2020);  Thao’s Notice of Motion and Motion for Change of Venue, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County Dist. Ct.Aug. 28, 2020); Defendant Kueng Moves for Dismissal and Change of Venue in George Floyd Case, dwkcommentaries.com (Aug. 28, 2020).

[6] Thao’s Notice of Motion and Motion To Sequester Jurors, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County Dist. Ct.Aug. 28, 2020).

[7]  Court Denies Ex-Officer Kueng Motion To Remove County Attorney from George Floyd Criminal Case, dwkcommentaries.com (Aug. 7, 2020).

[8] Kueng’s Notice of Additional Evidence, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County Dist. Ct. Aug. 27, 2020).

[9] Thao’s Motion to Compel Disclosure, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County Dist. Ct.Aug. 24, 2020); Chauvin’s Notice of Motion and Motion for Disclosure, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Aug. 28, 2020).

[10] See these posts to dwkcommentaries.com: Ex-Officer Lane Moves for Dismissal of Criminal Charges for George Floyd Killing (July 9, 2020);  Comment: Prosecutors Oppose Ex-Cop Thomas Lane’s Dismissal Motion (Aug. 12, 2020); Prosecution Opposes Lane’s Dismissal Motion (Aug. 21, 2020); Lane’s Reply to Prosecution’s Opposition to Dismissal of Complaint (Aug. 22, 2020); Ex-Officer Thao Moves for Dismissal of Criminal Charges for George Floyd Killing  (July 30, 2020); Defendant Thao’s Dismissal Motion (Aug. 25, 2020); Prosecution Opposes  Defendant Thao’s Dismissal Motion for George Floyd Killing (Aug. 27, 2020); Defendant Kueng Moves for Dismissal and Change of Venue in George Floyd Case (Aug. 28, 2020); Chauvin Motion To Dismiss Criminal Complaint (Sept. 9, 2020).

[11] State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County Dist. Ct. Sept. 8, 2020); Exhibits to State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County Dist. Ct. Sept. 8, 2020). See generally List of Posts to dwkcommentaries–Topical: George Floyd Killing.

 

Judge Cahill’s Memorandum Opinion Explaining His Order for Release of BodyCam Videos  

On August 11, Hennepin County District Court Judge Peter Cahill issued a Memorandum Opinion providing the factual findings and legal conclusions [1] for his August 7th Order granting the motion of the Media Coalition for copies of two of the BWC (body-worn camera) videos of George  Floyd’s arrest and killing.[2]

Preliminarily the Judge said, with citations of decisions by the U.S. and Minnesota Supreme Courts, “Cases that generate intense public interest and media scrutiny highlight the tension between two fundamental rights: the right guaranteed under the federal and state constitutions to criminal defendants to receive a fair trial before an impartial jury, on the one hand, and the right of the public and press to attend public trials, on the other hand.” Moreover, “The open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion,” as was true in this very case. (P. 4.)

“The Court is committed to the management of pretrial proceedings and the eventual trial(s) not only to vindicate the public’s and press’ right of access guaranteed by the First Amendment, the common law, and court rules but also Lane and his fellow co-defendants’ Sixth Amendment rights to a fair trial, and this Court’s and the parties’ interests in seeing that justice be done by a fair and objective jury determining the facts based solely on evidence that will be admitted at trial.” (P.8.)

In so doing, the court has conducted “all hearings in these cases in public . . . [with] overflow courtrooms to facilitate the presence of interested members of the public and press.” The court “has also created special websites for each of these cases in which all publicly-available documents that have been filed . . are made available to the public and press by remote access.” (P. 9.)

The court had issued a Gag Order on July 9th in an attempt “to mitigate what some colloquially characterize as efforts ‘to try the case in the press, to seek to avoid or at least to ameliorate the prospects of unduly tainting the prospective jury pool engendered by the intense media interest and reporting on these cases, and to seek to vindicate the Defendants’ rights and the State’s interest in ensuring justice is done in these cases by a fair and impartial jury deciding whether the Defendants or guilty or not guilty on the State’s charges based solely upon the evidence produced during trial, not based upon media reporting, public speculation, and extraneous information, inadmissible at trial, circulating during the months of pretrial preparation.” (Pp. 10-11.) [3]

The Memorandum Opinion then set forth its legal reasoning for its conclusions: (1) the Media Coalition has standing to intervene (pp. 11-13); (2) the media and the public have a right under the common law and court rules to obtain copies of the BWC videos, under cited U.S. and Minnesota Supreme Court decisions and Minnesota Rules of Criminal Procedure and Rules of Public Access to Records of the Judicial Branch. (Pp. 13-19.)

Important for the court, “based on the representations [of all counsel] were the following ” all council expect the [two BWC videos in question] . . . will be admitted into evidence at the trial, that allowing members of the public and the press to obtain copies of those BWC videos does not, at this stage of the proceedings, present a substantial likelihood of interfering with the fair and impartial administration of justice and the defendants; rights to a fair trial.”

The court did not find it necessary to decide whether the media had a first amendment right to obtain copies of the videos. (Pp. 19-22.)

In a footnote, the court noted that “the fractious, highly partisan, and segmented niches served by the modern-day media and journalists . . . should resoundingly dispel the notion that journalists, as a profession, can be depended on ‘to produce complete, accurate accounts of what transpires.” (Fn. 8 at 7-8.)

Conclusion

 This was a well-reasoned and written opinion.

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[1] State v. Lane, Opinion on Order Granting Motion of Media Coalition To Obtain Copies of Publicly-Filed Body-Worn Camera Video Evidence, (Court File No. 27-CR-20-12951, Hennepin County District Court, Aug. 11, 2020); Xiong, Judge says he withheld broad distribution of bodycam videos in George Floyd killing to preserve fair trial, StarTribune (Aug. 12, 2020).

[2] State v. Lane, Order Granting Motion of Media Coalition To Obtain Copies of Publicly-Filed, Body-Worn Camera Video Evidence, (Court File No. 27-CR-20-1295, Hennepin County District Court, Aug. 7, 2020); Court Orders Public Release of Bodycam Footage of George Floyd Arrest and Killing, dwkcommentaries.net (dwkcommentaries.net (Aug. 8. 2020).

[3] See Gag Order in George Floyd Murder Cases, dwkcommentaries.com (July 9, 2020).

Court Orders Public Release of Bodycam Footage of George Floyd Arrest and Killing   

On August 7, Hennepin County District Court Judge Peter Cahill ordered the public release of the bodycam footages of the arrest and killing of George Floyd that were made by criminal defendants and former police officers Thomas Lane and J. Alexander Kueng.[1]

The Judge’s order said, “Members of the Media Coalition, as well as other media and members of the public, may obtain copies” of the footage. The order, however, did not elaborate on the rationale for his ruling, nor on how or when the footage would be released.

On July 13, the so called Media Coalition of local and national media companies had filed with the court a motion for the immediate release of this footage. The Coalition argued that the court’s allowing these videos to be viewed only at the courthouse by appointment violated state laws, court rules and the First Amendment of the U.S. Constitution.[2]

The Media Coalition consists of the StarTribune; American Public Media, which owns Minnesota Public Radio; the Associated Press; CBS Broadcasting Inc.; Dow Jones & Co., publisher of the Wall Street Journal; Hubbard Broadcasting; Hubbard Broadcasting, which owns a Minnesota television broadcaster (KSTP-TV); and the New York Times Co., among others.

S===================================

[1] Simons, Judge orders release of Minneapolis police body camera video from the night George Floyd was killed, StarTribune (Aug. 7, 2020); Judge orders release of body camera video showing Floyd killing, MPRnews (Aug. 7, 2020).

[2] Media Coalition Asks Court To Release BodyCam Footage of George Floyd Killing, dwkcommentaries.com (July 14, 2020).

 

Court Denies Ex-Officer Kueng Motion To Remove County Attorney from George Floyd Criminal Case    

On August 6, Thomas Plunkett,the attorney for former Minneapolis police officer J. Alexander Kueng filed a motion to have Hennepin County Attorney Mike Freeman removed from the team of prosecuting attorneys.[1]

According to the motion papers, Freeman ‘cannot act to protect Mr. Kueng’s right to a fair trial as they have already proclaimed his guilt in numerous public statements. Mr. Freeman has called the death of Mr. Floyd a ‘senseless death’ and that he is sympathetic to the Floyd family.” In addition, Freeman allegedly “also commented that the video of the incident from a bystander ‘is graphic, and horrific and terrible, and no person should do that.” Therefore, these papers argue, “Mr. Freeman’s comments leave no doubt that justice is not his objective in the Kueng prosecution. Mr. Freeman has fomented public anger and now seeks to taint that anger with hatred through the prosecution of Mr. Kueng. He has abdicated his duties as a prosecutor and must be removed from the case.”

Kueng’s lawyer also asserted that Freeman’s office leaked information about potential plea negotiations, which he knew “would be widely reported and have a significant impact on the local community, potential jurors, and the nation.”

The very next day (August 7) without any response from the County Attorney and without a hearing, Hennepin County District Judge Peter Cahill denied the motion. The Judge said the attorney (Thomas Plunkett) had failed to establish that there was a conflict of interest and “failed to provide legal authority for the removal of a prosecutor by the Court, even if the allegations of improper conduct are true.”[2]

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

[1] Browning, Motion seeks removal of Hennepin County Attorney from case of officer charged in Floyd killing, StarTribune (Aug. 6, 2020); Assoc. Press, Ex-Cop’s Lawyer Wants Prosecutor Dropped From Floyd Case, N.Y. Times (Aug. 6, 2020).

[2]  Assoc. Press, Judge: Mike Freeman will stay on ex-cop’s case in Floyd death, StarTribune (Aug. 7, 2020.

 

British Newspaper Releases Bodycam Footage of George Floyd’s Arrest and Killing 

On August 3, a British newspaper’s website, Daily Mail.com, released about 10 minutes of the bodycam footage of former Minneapolis police officer Thomas Lane and about 18 minutes of ex-officer J. Alexander Kueng’s showing the May 25th encounter and killing of George Floyd.[1]

The Daily Mail’s online article says the footage “was leaked to DailyMail.com” and “is revealed exclusively by” that site. The article includes photos of some segments of the video as well as a button to push “Watch the full video.”  The article also includes the newspaper’s textual descriptions of what is seen on the videos and, in some instances, the newspaper’s interpretations of the encounter:

  • “It is clear from the video that Floyd was not trying to run away. He had plenty of time to leave the scene before police arrived. But instead he decided to sit in his car with two friends, giving the cops the opportunity to approach.”
  • “It shows a rookie officer terrifying Floyd by pointing a handgun at his head.”
  • “’Hey man, I’m sorry,’ Floyd says and apologizes again before Lane gets belligerent. ‘Put your f***ing hands up right now! Let me see your other hand,’ the cop is heard saying.”
  • “Floyd resisted as the cops tried to force him into the back of the car, telling them he suffers from claustrophobia and anxiety.”
  • “The tapes show in minute detail how a very distressed Floyd begs ‘Mr. Officer, please don’t shoot me. Please man,’ before the struggle that ended with his death.”
  • “It also shows how belligerent cops cursed at and manhandled the sobbing suspect, ignoring his pleas for compassion.”
  • “Floyd is even heard predicting his own death. ‘I’ll probably just die this way,’ he says.”
  • It shows an officer “callously picking a pebble from the squad car tire just inches from the dying man and seconds before he draws his last breath.”

The release of the videos was in violation of an order by Hennepin County District Judge Peter Cahill, who had made the videos available by appointment for public viewing at the courthouse on condition they not be recorded or publicly distributed. The court provided laptop computers for watching the videos to the scheduled viewers, who were required to not have their own computers and phones with them.[2]

The Daily Mail’s videos appear to have been recorded by an electronic device when they were shown on one of the court’s computers. The Daily Mail did not say how it had obtained the footages other than they had been “leaked.”

A court spokesman, Spencer Bickett, said the Court was aware of the leak, that an investigation was underway and that “The court will provide no further comment on this matter at this time.”

Minnesota Attorney General Keith Ellison stated that he was not the source of the leak and that his office “will continue to take the strictest precautions to ensure a fair trial.”

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[1] Gould, EXCLUSIVE: Police bodycam footage shows moment-by-moment arrest of George Floyd for the first time-from terror on his face when officer points gun at his head, sobbing before he’s shoved into a squad car and begging to breathe as his life drains away. DailyMaiol.com (Aug. 3,  2020); Wax-Thibodeaux, Bailey & Berman, Protests live updates: Daily Mail publishes ‘leaked’ police body-cam footage of George Floyd arrest, Wash. Post (Aug. 3, 2020); George Floyd Case: Daily Mail Obtains Body Cam Video from 2 Officers in Floyd’s Arrest Death, CBS Minnesota (Aug. 3, 2020); Assoc. Press, British Paper Publishes Police Bodycam Video of Floyd Arrest, N.Y. Times (Aug. 3, 2020); Xiong, Daily Mail publishes leaked bodycam footage of George Floyd arrest, killing, StarTribune (Aug. 3, 2020).

[2] 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); Journalist’s Report on viewing Two Bodycam Footages of George Floyd Killing, dwkcommentaries.com:  (July 15, 2020); Bodycam video shows officer pulled gun on George Floyd early on, StarTribune (July 16, 2020). See also List of Posts to dwkcommentaries—Topical: George Floyd Killing.

 

 

 

 

Court Hearing in Criminal Cases Against the Four Ex-Policemen in George Floyd Killing      

On July 21 Hennepin County District Court Judge Peter Cahill held a hearing to hear arguments on several pending motions in the criminal cases against the four ex-police officers involved in the May 25th killing of George Floyd.[1]

First, was the motion by the four ex-policemen to hold Attorney-General Ellison in contempt of court for making a public statement about his hiring, pro bono, four additional attorneys for the prosecution. Before the hearing, an Assistant Attorney General said this motion was a ploy to smear the prosecution, and during the hearing the Judge said the statement was innocuous and did not violate the gag order.

In any event, during the hearing, the judge vacated the gag order. The Judge said that order could have been more narrowly drawn as it “didn’t work” and  “may have exacerbated the issue” by causing parties to “tip toe” around in their public statements while leading the news media to rely on anonymous sourcing.

Second, the Judge heard arguments on the motion by a media coalition to release the video footage of two body camera footage of the police’s restraint of Mr. Floyd, but did not rule on that motion.

During the hearing, the attorney for defendant Thomas Lane, said that Floyd had “swallowed drugs” as Lane approached the car and that the bodycam video actually showed Floyd “stuffing counterfeit bills down his [car] seat before he showed his hands.”

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[1] Montemayor, Hennepin County judge drops gag order in case against four ex-cops charged in Killing of George Floyd, StarTribune (July 21, 2020); Ibrahim, Hennepin County judge lifts gag order in George Floyd criminal case, Twin Cities Pioneer Press (July 21, 2020); Lambert, Judge lifts gag order in criminal case against four former Minneapolis police officers, MINNPOST (July 22, 2020).

 

 

Defense Attorneys Accuse Attorney General Ellison of Contempt of Court in George Floyd Cases  

On July 14 Earl Gray, the attorney for defendant Thomas Lane, and Robert Paule, the attorney for defendant Tou Thau, accused Attorney General Keith Ellison of contempt of court by his issuance of a statement announcing the appointment of four Special Assistant Attorney Generals in the case.[1] That statement, which was the subject of a prior post, merely said the following:

  • “Seasoned attorneys join AG Ellison’s team pro bono in George Floyd case”
  • “Includes former acting U.S. Solicitor General Neal Katyal, Minnesota attorneys Lola Velázquez-Aguilu, Jerry Blackwell, and Steve Schleicher”
  • “Minnesota Attorney General Keith Ellison today announced that four seasoned attorneys and trial lawyers have joined on a pro bonobasis the prosecution team he leads in the George Floyd case. This team includes attorneys from the Minnesota Attorney General’s Office and the Hennepin County Attorney’s Office.”
  • “’Out of respect for Judge Cahill’s gag order, I will say simply that I’ve put together an exceptional team with experience and expertise across many disciplines. We are united in our responsibility to pursue justice in this case,’ Attorney General Ellison said.”
  • “The attorneys joining the prosecution team, each of whom Attorney General Ellison has appointed a Special Assistant Attorney General, are:
    • “Neal Katyal, partner at the international law firm Hogan Lovells, and former acting Solicitor General and former Principal Deputy Solicitor General of the United States.
    • Lola Velázquez-Aguilu, litigation and investigation counsel for Medtronic, and former prosecutor with the U.S. Attorney’s Office for the District of Minnesota. During her tenure at the U.S. Attorney’s Office, she prosecuted complex multi-defendant, white-collar crimes, including the successful prosecution and trial of several former executives from Starkey Hearing Technologies. Until today, she served as Chairwoman of the Commission on Judicial Selection, to which position she was appointed by Governor Tim Walz.
    • Jerry Blackwell, trial lawyer and founding partner, CEO, and chairman of the Minneapolis law firm Blackwell Burke, P.A. In June 2020, he won a full, first-ever posthumous pardon for Max Mason, who was wrongly convicted of rape in connection with the infamous Duluth lynching of June 1920.
    • Steven L. Schleicher, partner at the Minneapolis law firm Maslon LLP; former prosecutor with the U.S. Attorney’s Office for the District of Minnesota, the Minnesota Attorney General’s Office, the Winona County Attorney’s Office, and U.S. Army Reserve JAG Corps. In 2016, he led the successful prosecution of the person responsible for the kidnapping and murder of Jacob Wetterling.”

According to Mr. Gray, “Ellison should be jailed along with” his spokesman John Stiles. “There is no reason to announce that these so called ‘super stars’ are joining the prosecution and that they’re doing it for free. It is an obvious statement to the public that these ‘super stars’ lawyers believe that our clients are guilty. Further proof that the news release was done to influence the public is that it was released by John Stiles, who, according to Google, is a chief strategy officer and builds reputations and brands.”

Mr. Paule merely moved the Court for an order holding “Keith Ellison, the Attorney General for Minnesota and lead prosecutor in the above-captioned case, in contempt of court and ordering sanctions as a result of his actions.”

The Court’s Gag Order[2]

The purported basis for these motions is the Court’s Gag Order of July 9, which prohibited attorneys and others working on the matter from publicly talking about  “any information, opinions, strategies, plans or potential evidence . . . either to the media or members of the general public. This includes, but is not limited to, any discovery provided to the parties, and any exhibits in the case.”

Reactions

Joseph Daly, professor emeritus at Mitchell Hamline School of Law, believes it unlikely that the judge will sanction or have Ellison and Stiles arrested. “Judges do not like to sanction lawyers unless their conduct is outrageous.” At most, Daly thought, the judge might  issue a warning or clarify his gag order.

I concur in Daly’s opinion. The Attorney General’s statement, in my judgment, did not concern the AG Office’s “opinions, strategies, plans or potential evidence” or evidentiary “discovery” or “exhibits in the case.” Yes, the statement did contain “information” relating to the case, but it was not information relating to opinions, strategies, plans or potential evidence or evidentiary discovery or exhibits in the case. Moreover, any of the parties in this or any other criminal or civil case has a right to hire new or additional attorneys and to give public notice of such developments.

In short, there is no basis in the Attorney General’s statement for the two defense attorneys’ assertion that it was intended to tell the public that these ‘super stars’ lawyers believe that our clients are guilty.’  It would be just as easy to speculate, without any foundation, that the statement was a sign that the Attorney General is worried about the strength of the criminal charges or the capabilities of the existing team of prosecution attorneys.

These motions are ridiculous and should be denied.

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[1]  Xiong, Defense attorneys in George Floyd’s death accuse AG Ellison of contempt of court, StarTribune (July 14, 2020); Minnesota Attorney General, Seasoned attorneys join AG Ellison’s team pro bono in George Floyd Case (July 13, 2020).

[2]  Gag Order in George Floyd Murder Cases, dwkcommentaries.com (July 9, 2020).

 

Gag Order in George Floyd Murder Cases  

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

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

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

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