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).

 

Prosecution Requests One Trial for the Four Former Policemen Charged with Floyd Killing

On August 12, the prosecution in the four George Floyd murder and manslaughter cases asked  the trial court to consolidate all the cases for one trial, currently scheduled to start on March 8.[1]

Technically this was a motion for joinder of the four cases under Minnesota Rule of Criminal Procedure 17.03, subd. 2, which “when two or more defendants are charged with the same offense,” the court has discretion for them to be tried jointly after considering the following four factors: (i) “the nature of the offense charged;” (ii) “the impact on the victim;” (iii) “the potential prejudice to the defendant;” and (iv) “the interests of justice.”

The brief in support of the motion said, “First, the nature of the offenses supports joinder because of the similarity of the charges and evidence against all four Defendants. Second, the victim-impact factor favors joinder because this factor has been interpreted broadly to include the impact on eyewitnesses and family members who would likely be traumatized by multiple trials. Third, Defendants are unlikely to be prejudiced by joinder because their defenses are not antagonistic. Finally, the interests of justice favor joinder because, among other things, separate trials would cause delay and impose burdens on the State, the Court, and witnesses, and trial-related publicity may compound the difficulty in selecting a jury in subsequent trials. This Court should therefore grant the motion and order the joinder of all four Defendants’ trials.”

For this retired attorney without criminal law experience, this sounds like a very strong argument. The toughest point appears to be whether or not any of the four defendants would be prejudiced by a consolidated trial.

According to the Minnesota Supreme Court, says the prosecution, “the potential prejudice to the defendants—weighs against joinder only if Defendants show that they will present ‘antagonistic defenses’ at trial,” i.e., “when they seek to put the blame on each other and the jury is forced to choose between the defense theories advocated by the defendants.” Moreover, says the prosecution, The Minnesota Supreme Court has identified two narrow categories of cases in which antagonistic defenses are likely to be present;” (1) “where the state introduce[s] evidence that show[s] only one of the defendants killed the  victim, thus forcing each defendant to ’point the finger’ at the other;” and (2) “when the jury is ‘forced to believe the testimony of one defendant or the testimony of the other’ in order to reach a verdict.” Moreover, under Minnesota Supreme court precedents, “arguments about disparate levels of responsibility among the defendants are not enough to render defenses antagonistic.”

Moreover, the prosecution says, “the four defendants are likely to raise common defenses.,” such as the use of force was reasonable or necessary, or that the Defendants’ actions did not cause Floyd’s death.”

The evidence for the motion was provided in exhibits to the Affidavit of Assistant Attorney General Matthew Frank: the body worn camera video of defendants J. Alexander Kueng, Thomas Lane and Tou Thao (Exs. 1-3);[2] copies of the Bureau of Criminal Apprehension interviews of Lane and Thao (Exs. 4 & 5); Minneapolis Police Department’s Policy and Procedure Manual (pertinent portions) (Ex. 6); Hennepin County Medical Examiner Autopsy Report (Ex. 7); Hennepin County Medical Examiner Press release Report (Ex. 8); and Armed Forces Medical Examiner report (Ex. 9).

The defendants’ responses to this motion are due September 8 for the September 11 hearing.

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[1] Xiong, Prosecutors seek permission for one trial for all four former officers charged in George Floyd’s killing, StarTribune (Aug. 12, 2020); State v. Chauvin, State’s Notice of Motion and Motion for Joinder, Court File No. 27-CR-20-12646 (Aug. 12, 2020); State v. Chauvin, Affidavit of Matthew Frank, Court File No. 27-CR-20-12646 (Aug. 12, 2020); State v. Chauvin, Exhibits Attached to Affidavit of Matthew Frank, Court File No. 27-CR-20-12646 (Aug. 12, 2020)(Exhibits 4 and 5 were copies of the Bureau of Criminal Apprehension interviews of former officers Lane and Thao on flash drive, which were not available online); State v. Chauvin, State’s Memorandum in Support of Motion for Joinder, Court File No. 27-CR-20-12646 (Aug. 12, 2020); State v. Chauvin, Scheduling Order, Court File No. 27-CR-20-12646 (Aug. 13, 2020).

[2]  The bodycam video of defendant Thao has not previously been reported. According to the Associated Press, it shows for the first time “the growing horror of nearly a dozen onlookers who repeatedly pleaded with the officers to get off Floyd. One of the bystanders, a black man wearing a Northside Boxing Club sweatshirt yells at Chauvin to ‘”get off his (expletive) neck, Bro” and asks Thao “You gonna keep him like that? “You gonna let him kill that man in front of you, Bro? Bro, he’s not even (expletive) moving right now, Bro.” When a woman who identifies herself as a Minneapolis firefighter arrives, Thao yells at her, ‘Back off!” She, however, persists and asks if the officers have checked the man’s pulse.(Assoc. Press, Ex-Cop’s Video Captures Crowd’s Horror During Floyd Arrest, N.Y. Times (Aug. 13, 2020); Bailey, Owens, Griffiths & Wolfrom, Live updates: New footage released of George Floyd’s fatal encounter with police, Wash. Post (Aug. 13, 2020).)

 

 

 

Pretrial Hearing in Criminal Cases Over George Floyd Killing

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

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

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

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

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

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

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

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

 

 

 

Initial Hearings in Criminal Cases for Killing George Floyd

There are now four criminal cases against former Minneapolis police officers for the killing of George Floyd, all pending in the Hennepin County District Court in Minneapolis, and all four have had their brief initial hearings.

Derek Chauvin [1]

On June 8 Chauvin made his initial appearance by a video feed from a room at the Minnesota State Prison in Oak Heights, Minnesota. The only issue was the amount of his bail,  and the hearing lasted only 15 minutes without any comments by Chauvin or his attorney, Eric Nelson.

The prosecutor, Minnesota Assistant Attorney General Matthew Frank, said that the “severity of the charges” and the strong public opinion against Chauvin made him a more likely flight risk if he were released and, therefore, requested the bail be increased from $1 million to $1.25 million. The attorney for Chauvin, Eric Nelson, did not object, and Hennepin County District Judge Jeannice Reding, increased the bail to $1.25 million without conditions and to $1.0 million with conditions.

Chauvin’s next hearing, when he is expected to enter a plea to the charges, will be on June 29.

Judge Reding was appointed to the bench in January 2006, by Governor Tim Pawlenty (Rep.) and was elected to continue in that position in 2008 and 2014. After graduating cum laude from the University of Minnesota Law School in 1990, she was an attorney in a private Minneapolis law firm for seven years, a Minnesota Administrative Law Judge for two years and a Hennepin County District Magistrate and Referee for eight years. She is a founding member and past treasurer of the Minnesota American Indian Bar Association and served as a guardian ad Litem for children of tribal members in the tribal court of the Shakopee Mdewakanton Sioux Community.

J. Alexander Kueng, Thomas Lane & Tou Thao

Each of these three officers has been charged with aiding and abetting second-degree murder and second-degree manslaughter. At their initial hearing on June 4, Hennepin County District Court Judge Paul Scoggin set bail for each at $1 million without conditions or $750,000 with conditions. [3]

The prosecutor, Minnesota Assistant Attorney General, Matthew Frank, argued for high bail amounts because the charges were “very serious” and due to intense public interest each of these defendants was a flight risk. Each of the attorneys for the defendants objected to such amounts and instead argued for bail between $50,000 and $250,000.

Lane’s attorney, Earl Grey, disputing the complaint’s allegation that Chauvin had pulled Floyd out of one of the squad cars, claimed instead that Floyd had reisited arrest, “asserted himself” and  “flew out” of the squad car. Gray also emphasized that on the day of the Floyd death Lane was only on his fourth day as a full-time officer. Therefore, Gray argued, ““What is my client supposed to do but follow what the [senior] officer says? What was [Lane] supposed to do … go up to Mr. Chauvin and grab him and throw him off?” Instead, Lane thought he was doing what was right because he twice asked Chauvin whether they should roll Floyd over. “The strength of this case,” said Gray, “is extremely weak.” As a result, Gray said he would move to dismiss the complaint for lack of evidence.

More generally, Grey said Lane previously had worked as a juvenile counselor at a few “juvenile places” in the Twin Cities and once received a community service award from Mayor Jacob Frey and Minneapolis Police Chief Arradondo for volunteering with children.

Keung’s attorney, Thomas Plunkett, made a similar argument. He said, “At all times Mr. Keung and Mr. Lane turned their attention to that 19-year veteran. [They] were trying to communicate that this situation needs to change direction.” In addition, Plunkett said that  Keung is a black man who grew up in north Minneapolis with a single mom who adopted four at-risk children from the community and that Keung has always lived within 10 miles of his childhood home, was captain of the soccer team at Patrick Henry High School, where he graduated, coached youth soccer and baseball, and volunteered to build a school in Haiti. “He turned to law enforcement because he wanted to make that community a better place,” his lawyer said.

Thao’s attorney, Robert Paule, had a different tack. He said Thao had given a statement to investigators from the Minnesota Bureau of Criminal Apprehension (BCA) and that he is not a flight risk because he has deep roots in the community. He  is a lifelong resident of the metro area, is married and has children.

Judge Scoggin was appointed to the bench in 2015 by Governor Mark Dayton (DFL) and elected to continue in that office in 2016. His J.D. was awarded cum laude in 1984 by the University of Minnesota Law School, after which he was an Assistant Hennepin County Attorney through 2014 with a stint in 2009-10 as an International Prosecutor with the European Union External Action.

Conclusion

Subsequent posts will examine the  criminal complaints against the four officers and their second hearing scheduled for June 29.

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[1] Stanley & Xiong, $1.25M bail set for Derek Chauvin at his initial appearance Monday in George Floyd’s death, StarTribune (June 8, 2020); Karnowski, Officer charged in Floyd’s death held on $1 million bail, StarTribune (June 8, 2020); Bail Set for Up to $1.25 Million for Officer Charged With Murder in George Floyd Case, N.Y. Times (June 8, 2020).

[2] Xiong, Two ex-Minneapolis police officers charged in George Floyd’s death cast blame on more senior colleague, StarTribune (June 5, 2020); Gordon & Richmond, Duty to intervene: Floyd cops spoke but didn’t step in, StarTribune (June 7, 2020); Karnowski, Officer charged in Floyd death held on $1 million bail, StarTribune (June 8, 2020); Condon & Richmond, Duty to intervene: Floyd cops spoke up but didn’t step in, StarTribune (June 7, 2020).

[3] On June 10, Lane posted cash bail of $750,000 with conditions (surrendering firearms, remaining law-abiding and making all future court appearances) and was released from jail. (Walsh, Fired Minneapolis police officer, Thomas Lane, one of 4 charged in George Floyd’s death, posts bail and leaves jail, StarTribune (June 10, 2020).)