Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment           

                                                                                                                               On June 25, Hennepin County District Court Judge Peter Cahill entered the following order, “ As to Count I, based on the verdict of the jury finding you guilty of unintentional second-degree murder while committing a felony under Minn. Stat. sec. 609.19, subd. 2(1), it is the judgment of the Court that you now stand convicted of that offense. Pursuant to Minn. Stat. sec. 609.04, Counts II and III remain unadjudicated as they are lesser offenses of Count I.”

Therefore, the “Court commits . . . [Derek Chauvin] to the custody of the Commissioner of Corrections for a period of 270 months [22.5 years]. You are granted credit for 199 days already served.”[1]

With this sentence, the  Minnesota Department of Corrections has said that if Chauvin qualifies by good behavior in prison, he would be released from prison on December 10, 2035, which will be when Chauvin is 59 years old, followed by supervised parole until June 8, 2043.

Court’s Opinion Regarding This Sentence[2]

Judge Cahill first reviewed the Minnesota Sentencing Guidelines, which were promulgated “to establish rational and consistent sentencing standards the promote public safety, reduce sentencing disparity, and ensure that the sanctions imposed . . . are proportional to the severity of the . . . offense and the offender’s criminal history.”  The Guidelines also establish “presumptive ranges” for the offenses and for most cases, the maximum sentence that may be imposed is at the top of that range.

However, the Guidelines also recognize that there are cases when the guidelines may not be appropriate and that a different sentence may be imposed for “substantial and compelling circumstances,” i.e., when the “defendant’s conduct in the offense . . . was significantly more or less serious than that typically involved in the commission of the crime in question.” (Emphasis in original quotation of Minnesota Supreme Court case.)

Here, the presumptive range of a sentence for second-degree murder is 128 to 180 months with a presumptive sentence of 150 months (12.5 years). To deviate from these guidelines, the court (or jury) must find that there were one or more “aggravating factors” in the crime at issue. Here, the court determined that there were two such “aggravating factors”: Chauvin abused a position of trust and authority and Chauvin treated Mr. Floyd with particular cruelty.

Although the court previously had concluded there were two other aggravating factors–children were present during the commission of the crime and Chauvin committed the crime with the active participation of three other former Minneapolis policemen—Judge Cahill for various reasons declined to use them for determining the sentence.

Judge Cahill then sought “to effectuate the Minnesota guidelines policy of reducing sentencing disparity” by examining Minnesota sentences over that last ten years for murder in the second-degree. For all such sentences, 67% were within the presumptive guidelines range while 20% were upward departures and 13% were downward departures. Moreover, the most common aggravated sentence has been 240 months (20 years) while the average aggravated departure for defendants with a zero criminal history score [like Chauvin] was 278.2 month (23.2 years).

Therefore, the court concluded, “Mr. Chauvin, rather than pursuing the MPD mission [to give citizens ‘voice and respect’], treated Mr. Floyd without respect and denied him the dignity owed to all human beings and which he certainly would have extended to a friend or neighbor. In the Court’s view, 270 months, which amounts to an additional ten years over the presumptive 150-month sentence, is the appropriate sentence.” In other words, “In consideration of all the facts presented at trial, this Court’s experience, and the collective experience of the entire Court over the last ten years, the Court finds the appropriate prison sentence for Mr. Chauvin is 270 months.”

This opinion demonstrates Judge Cahill’s careful attention to factual and legal details. The only part that is questionable, in this blogger’s opinion, is his refusal to consider for sentencing his previous conclusion that another aggravating factors was  the presence of children. Compare his previous conclusion on this factors with his stated rationale for not considering it for sentencing:

  • Sentencing conclusion. “Although four young women were present and observed portions of the nine and a half minutes restraint of Mr. Floyd, none was injured or threatened with physical injury so long as they did not interfere; none had been present during the previous police struggle to get Mr. Floyd into a squad car, were free to leave the scene at any time, they did not know any of the officers or Mr. Floyd and at trial did not present any objective indicia of trauma.”
  • Previous conclusion. “Children were present on the sidewalk adjoining Chicago Avenue standing only a few feet from where . . . [Chauvin] and the other officers were restraining George Floyd prone in the street and observed Mr. Floyd being asphyxiated as he begged for his life.. . . Although these four children did not observe all the events, they did observe a substantial portion of the . . .[Chauvin’s] use of force and witnesses the last moments of Mr. Floyd’s life.”

This sentencing conclusion, in this blogger’s opinion, is weak in light of  the trial testimony of then 17-year-old Darnella Frazier: “When I look at George Floyd I look at my dad, I look at my brothers, I look at my cousins, my uncles because they are all Black,” she said. “I have a Black father, I have Black brothers, I have Black friends. I look at them and how it could have been one of them. It’s been nights I’ve stayed up apologizing to George Floyd for not doing more and not physically interacting and not saving his life, it’s not what I should have done it’s what he [Chauvin] should have done.” Another 17-year-old girl testified at trial,  “It was difficult because I felt like there wasn’t really anything I could do. As a bystander I was powerless there, and I was failing to do anything.”

The court’s refusal to consider for sentencing the other aggravating factor of Chauvin’s committing the crime with the assistance of others, however, was justified given the statute’s requirement for sentencing that the others be “offenders,”  which has not yet been established with their trial scheduled for this August

Sentencing Hearing[3]

At the June 25 hearing, before the Court imposed the above sentence, the Court heard victim impact statements from members of the Floyd family (seven-year-old daughter Gianna, brothers Terrance and Philonise and nephew Brandon Williams), and Chauvin’s mother (Carolyn Pawlenty).

Derek Chauvin also made the following statement. “At this time due to some additional legal matters at hand, I’m not able to give a full, formal statement at this time. Briefly though, I do want to give my condolences to the Floyd family. There’s going to be some other information in the future that would be of interest, and I hope things will give you some peace of mind. Thank you.” (Emphases added.)

No further information was provided as to what this future information will be, but the only thing this blogger can think of that would be of some comfort to the Floyd family would be an overall agreement among Chauvin and the federal and Minnesota prosecutors for Chauvin to plead guilty to all charges and to abandon any appeal from this guilty verdict and judgment in exchange for an agreed sentence to a federal detention facility.

In addition, at this hearing, Assistant Minnesota Attorney General Matthew Frank and defense attorney Erik Nelson made short statements in support of their requested sentences (30 years by the State and probation and parole by the defense).

At the conclusion of the hearing, Judge Cahill said the sentence was “not based on public opinion. I am not basing it on any attempt to send any messages. The job of a trial judge is to apply the law to specific facts.”

Court’s Order Denying Two Defendant’s Motions[4]

 On June 24 (the day before the hearing), the Court denied Chauvin’s motions for a new trial and for a Schwartz hearing to investigate the jury’s conduct during the trial.  Those denials followed from the following findings of fact and conclusions of law by the court:

  1. “Defendant has failed to demonstrate that the Court abused its discretion or committed error that Defendant was deprived of his constitutional right to a fair trial.”
  2. “Defendant has failed to demonstrate that the State engaged in prosecutorial misconduct such that Defendant was deprived of his constitutional right to a fair trial.”
  3. “Defendant has failed to establish a prima facie case of juror misconduct or that a juror gave false testimony during voir dire to warrant an evidentiary hearing pursuant to Schwarz v. Minneapolis Suburban Bus Co. . . . [and] State v. Ussee. . . .”

Commentary About the Sentencing[5]

Minnesota Attorney General Keith Ellison. Minnesota Attorney General Keith Ellison in a statement published by the Washington Post said, “Chauvin is one of the few police officers ever convicted of murder for a death on the job. Chauvin’s 22½-year sentence, announced Friday, is one of the longest any police officer in the United States has received in modern times for the death of a civilian.”

“But one exceptional case does not solve the problem. Can this conviction help us finally break the cycle of inaction once and for all?”

“It depends whether we act.”

“Prosecutors must act.”

“Prosecutors must commit to vigorous, visible and swift prosecutions of in-custody deaths when there is probable cause that the use of force was unlawful. They should not be afraid to use all the tools the law puts at their disposal. The visibility of prosecutions, to restore and build credibility with the public, is as important as the vigor employed.”

“The Justice Department must also be a partner in prosecuting cases when local prosecutions fail to win convictions — or fail to act. The Biden administration’s return to conducting investigations into biased policing patterns and practices is also welcome.”

“Prosecutions must also be swift. Chauvin was convicted less than a year after he took Floyd’s life. By contrast, it took four years from the death of Laquan McDonald for Chicago police officer Jason Van Dyke to be convicted. We cannot possibly build public trust if we allow prosecutions to take this long.”

“Lawmakers must act.”

“Congress must pass the strongest version of the George Floyd Justice in Policing Act it can pass. Don’t wait for the perfect bill when a meaningful first step is within reach. Remember: the Voting Rights Act of 1965 and the Fair Housing Act of 1968 were passed after the Civil Rights Act of 1964. Enduring, systemic change takes time.”

“At the state level, legislatures should authorize attorneys general to conduct investigations into local law enforcement to bring to light any persistent patterns of misconduct within a given police department. State-based pattern-or-practice investigations — which critically involve both community members and police officers — have proved successful. If states don’t do that, Congress should make it possible for attorneys general to rely on federal authority to conduct these investigations.”

“City councils and county boards must support reform-minded law enforcement leaders and, if necessary, use the power of the purse to compel reform by directing money toward progressive training and holding leadership accountable for outcomes. We must also recognize that, too often, we ask police officers to solve problems they are neither trained nor intended to solve. We must provide people in crisis with comprehensive social services that law enforcement cannot provide, and we must also support officer wellness.”

“Law enforcement must act.”

“Police leadership must be empowered to take meaningful action. Rather than punishing good officers who call out their colleagues’ bad behavior, as sometimes occurs, police departments should celebrate them and commend their service.”

“The Chauvin trial produced some remarkable, even astonishing, moments, with multiple police officers testifying for the prosecution, and with the police chief, in full uniform, testifying that the defendant’s behavior was not a reasonable use of force in line with department policy. Such testimony should become commonplace, not remain a rarity.”’

“This isn’t about creating a culture of ‘snitching” — it’s about creating a culture of accountability that sets and enforces clear professional standards that protect both police officers and community members.”

“Finally, communities must act.”

“It is imperative that communities keep up the pressure for reform and accountability, and finally end the cycle of inaction. My office could not have led the prosecution of Chauvin without the help of ordinary people who courageously bore witness to Floyd’s death, and the pressure from a community that demanded accountability and action.”

President Joe Biden. At the White House on June 25, President Biden responded to a reporter’s question about the sentencing with this comment: “I don’t know all the circumstances that were considered but it seems to me, under the guidelines, that seems to be appropriate.”

Washington Post Editorial. An editorial in the Washington Post said Chauvin’s conviction and sentencing “should bring a measure of satisfaction that justice was served and assure Americans that the system is not hopelessly broken.”

But more broadly , “Policing in the United States could be more effective and less threatening to minority communities. Officers who commit wrongdoings could face more certain punishments. Floyd’s death last spring appeared to spur a reckoning on U.S. policing, but that momentum has slowed in recent months.”

For example, a bipartisan criminal justice reform bill so far has failed to pass in the U.S. Congress. The House of Representatives in March passed a sweeping police reform bill, but Republican opposition in the Senate appears to doom that bill.

Experts’ Reactions. Although the Chauvin case could lead to better police hiring and training, more trust between police and communities and make the public and future jurors more reception to complaints about police interactions with minorities, this case “ doesn’t address deep-rooted issues of race and violence affecting police interactions with minorities [and does not] . . . result in charges or convictions against officers, according to Sheila A.Bedi, a professor at Northwestern University’s Pritzker School of Law, Director of its Community Justice & Civil Rights Clinic and an attorney in use-of-force lawsuits against the Chicago Police Department.

Another professor of criminal justice, Philip Stinson of Bowling Green State University, pointed out that since 2005 only 11 non-federal law officers, including Chauvin, have been convicted of murder for on-duty conduct, the nine who were sentenced before Chauvin received sentences ranging from six years to life behind bars with the median being 15 years.

Floyd Family Attorney’s Reaction. Ben Crump, the attorney for the Floyd family, called for a federal conviction of Chauvin that might lead to a longer sentence.

Conclusion

We now wait to see the results of any appeal of this conviction and sentencing by Chauvin; the results of the August trial of the other three ex-officers in state court and any subsequent appeals; developments in the federal court criminal cases against the four ex-policemen; and the details of any guilty plea agreements by any or all of the four men.[6]

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[1] Sentencing Order and Memorandum Opinion, State v. Chauvin, Hennepin County District Court, Dist. Ct. , File No. 27-CR-20-12646 (June 25, 2021); Derek Chauvin Trial:  Week Seven (Conviction), dwkcommentaries.com (April 21, 2021).

[2] Ibid; Derek Chauvin Trial: Week Four, dwkcommentaries.com (April 2, 2021). Derek Chauvin Trial: Court finds Aggravating Factors for Sentencing, dwkcommentaries.com (May 12, 2021); Derek Chauvin Trial: Arguments About Sentencing of Chauvin, dwkcommentaries.com (June 7, 2021); Derek Chauvin Trial: Issues for Sentencing, dwkcommentaries.com (June 18, 2021);

[3] Olson, Xioing & Walsh, Chauvin Sentenced to 22 ½ years for the murder of George Floyd, StarTribune (June 26, 2021).

[4] State v. Chauvin, Hennepin County District Court, Dist. Ct. File 27-CR-20-12646 (June 24, 2021); AP. Judge rejects Chauvin request for new trial in Floyd death, Wash. Post (June 25, 2021); Xiong, Former officer Derek Chauvin faces sentencing Friday afternoon; judge denies defense motion for new trial, StarTribune (June 25, 2021); Derek Chauvin Trial: Defendant’s Motion for New Trial and Impeachment of Verdict, dwkcommentaries.com (May 5 2021).

[5]  Ellison, Opinion: Derek Chauvin is going to prison. Let this be a turning point, Wash. Post (June 26, 2021); Goodnough, Biden calls long prison sentence for Derek Chauvin ‘appropriate,’ N.Y. Times (June 25, 2021); Editorial, Opinion: Derek Chauvin is headed to prison. But that is not enough, Wash. Post (June 25, 2021); Webber (AP), Experts: Impact of Chauvin case on policing yet to be seen, Wash. Post (June 26, 2021); Assoc. Press, Floyd family lawyer calls for federal conviction for Chauvin, Wash. Post (June 25, 2021).

[6] This blog has covered all of the details in these cases and intends to continue doing so. (See List of Posts to dwkcommentaries—Topical: George Floyd Killing.

Developments in State Criminal Cases for George Floyd Killing

 There have been four recent developments in the state criminal cases over the killing of George Floyd: (a) the state trial court’s delaying the criminal trial of the other three defendants (Thomas Lane, J. Alexander Kueng and Tou Thao); (b) conducting a hearing on Lane’s motion for discovery of certain use-of-force reports by the Minneapolis Police Department; (c) conducting a hearing on motions for sanctions for alleged leak of alleged Chauvin offer to plead guilty; and (d) Thao’s motion for sanctions for alleged illegal pressure on Hennepin County Medical Examiner.

Delay of Trial [1]

At the May 13 pretrial hearing in the three cases, Judge Peter Cahill announced that the trial would be delayed from August 25, 2021 to March 7, 2022. The Judge gave three reasons for this postponement: (a) provide time for the Judge to deal with pending issues in the cases; (b) provide time for the recently filed federal criminal case against all four ex-officers to proceed since it carries higher potential penalties; [2] and (c) provide time for the publicity about the trial and conviction of Derek Chauvin to diminish.

The three defendants favored the postponement. The State did not .

Nekima Levy Armstrong, a lawyer and prominent civil rights activist in Minneapolis, did not approve of this postponement. She said, “I think we they should have just moved forward. I don’t think it helps our community in a positive way to have to wait about another year.”

Lane’s Motion for Discovery [3]

Previously Lane had requested the State to disclose all use-of-force reports for the last 30 years in which a Minneapolis police officer intervened verbally or physically against another officer’s use of force and the State objected. Lane’s attorney believes there are no such reports and thus discredit the aiding and abetting charges against Lane (and the other two ex-officers )for not intervening to stop Chauvin’s restraint of George Floyd.

Matthew Frank for the State argued that the request was overly broad and should be denied. ts brief stated, that Lane had “not established how the intentions and actions of individual police officers in past years in other incidents would be admissible to impeach testimony about the objectively reasonable officer standard. His failure to address the factual or legal standards necessary to this motion highlight that this is not a serious discovery motion, but simply an attempt to usurp the Court’s time and resources so counsel for Defendant Lane can obtain a public forum to argue his theory of the case. His motion should be summarily denied.”

The Judge said he would take the motion under advisement and later issue an order on the motion.

Three Co-Defendants Motion for Sanctions [4]

The three co-defendants (Lane, Kueng and Thao) have alleged that the prosecution leaked to the New York Times an alleged offer by Chauvin to plead guilty to third -degree murder only three days after the killing of Mr. Floyd.[5]

At the May 13th  hearing, this subject was raised when the three co-defendants asked for the prosecutors to testify under oath or submit affidavits that they did not leak this information, and Judge Cahill revealed that shortly after publication of the Times article he had asked the prosecutors to do just that, but only one such affidavit was provided (by Matthew Frank) while Attorney General Ellison submitted a letter (not under oath) that the prosecution team was not the source.

Judge Cahill tentatively scheduled an August hearing on this matter, and one of the co-defendants’ attorneys said he would subpoena prosecutors who had not submitted affidavits as well as the New York Times reporter for the article (Tim Arango) even though Judge Cahill expressed concern about a subpoena to the journalist in light of his First Amendment protections. (Indeed, the New York Times subsequently stated that it “will vigorously defend against any effort to target our reporters and their sources.”

Thao’s Motion for Sanctions [6]

On March 12 attorneys for Tou Thao filed a motion for sanctions for alleged prosecutorial misconduct in allegedly (a) having Dr. Roger Mitchell, a former Chief Medical Examiner for Washington, D.C., pressure Dr. Andrew Baker, the Hennepin County Medical Examiner, to change his preliminary findings of “no physical findings [supporting] a diagnosis of traumatic asphyxia or strangulation” to the final findings of “neck compression;” and (b) after Chauvin’s chief medical expert (Dr. Fowler) testified that in his opinion the cause of death was undetermined, Dr. Mitchell wrote to Maryland officials to investigate Dr. Fowler’s qualifications and such an investigation was commenced by the Maryland Attorney General.

The motion then requested an order (a) dismissing the criminal charges against Thao; (b) barring seven attorneys (Including Attorney General Ellison and Neal Katyal) from participating in any trial against Thao; (c) asserting complaints about these attorneys to their professional responsibility authorities; and (d) requiring the State to report Dr. Mitchell to the appropriate medical boards.

The same day (May 12) Minnesota Assistant Attorney General Matthew Frank sent a letter to the Judge, saying that this motion asserted, “Bizarre allegations . . . [that] are false and wrong” and that the State requested one week to file a response to the motion.

Conclusion

The issues keep coming.

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[1] Xiong, State trial postponed to March 2022 for ex-officers charged with aiding and abetting murder in George Floyd death, StarTribune (May 13, 2021); Furber, Judge Delays Trial for Other Officers Charged in Killing of George Floyd, N.Y. Times (May 13, 2021); Bailey, Trial for 3 former officers charged in George Floyd’s murder delayed until March, Wash. Post (May 13, 2021); Karnowski & Forliti (AP), Trial for 3 ex-cops charged in Floyd’s death pushed to March, Wash. Post (May 13, 2021); Winter, Judge Delays trial in George Floyd Case, W.S.J. (May 13, 2021).

[2] See Federal Criminal Charges Against Ex-Minneapolis Policemen Over George Floyd Killing, dwkcommentaries.com (May 7, 2021).

[3] See n.1 supra. See also State’s Response to Defendant Lane’s February 10, 2021 Discovery Motion, State v. Lane, Hennepin County District Court, Case No. 27-CR-20-12951 (May 11, 2021).

[4] See n. 1 supra.

[5] See n. 1 supra; Did Derek Chauvin Agree to Plead Guilty to Third-Degree Murder for Killing George Floyd, dwkcommentaries.com (Feb. 11, 2021).

[6] See n. 1 supra. See also  Motion for Sanctions for Prosecutorial Misconduct Stemming from Witness Coercion, State v. Thao, Court File No. 27-CR-20-12949, Hennepin County District Court May 12, 2021), https://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12949-TT/NOMM05122021.pdf; Letter, Matthew Frank (Assistant Attorney General) to Judge Cahill, State v. Thao, Court File No. 27-CR-20-12949, Hennepin County District Court May 12, 2021).. https://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12949-TT/Correspondence05122021.pdf.

 

 

 

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).)