Chauvin Moves To Dismiss Criminal Complaint 

On August 28, former Minneapolis police officer Derek Chauvin filed a motion to dismiss the criminal complaints against him.[1] Here is a summary of this motion.

Dismissal of Count I–Second Degree Unintentional Murder

 Count I of the Amended Complaint alleges Chauvin is guilty of Second Degree Unintentional Murder by reason of his allegedly committing a Third Degree Assault. But it does not even “allege that Mr. Chauvin possessed the intent to inflict bodily harm upon Mr. Floyd.” And “the State has offered no evidence to support the intent element of third-degree assault.” (Chauvin Memo at 9.)

Instead, the evidence shows that Floyd “was struggling in and around the squad [car] at a busy Minneapolis intersection. He was handcuffed and acting erratically. Continued struggle posed a risk of injury to Mr. Floyd and, potentially, to officers. The decision to use MRT allowed officers to restrain Mr. Floyd without injury until EMS arrived on scene. Mr. Chauvin, who arrived at the scene as officers were already struggling with Mr. Floyd, checked to ensure that EMS had been called.” (Id. at 9-10.)

“The Medical Examiner found no bruising on Mr. Floyd’s neck or on any neck muscles or any injury to neck structures. There was no bruising on Mr. Floyd’s back or evidence of blunt trauma to his back. If Mr. Chauvin had intended to inflict harm to Mr. Floyd’s back and neck with his knee, surely there would be evidence of bruising. But clearly, Mr. Chauvin was cautious about the amount of pressure he used to restrain Mr. Floyd—cautious enough to prevent bruising. Video evidence shows Mr. Chauvin was calm and professional throughout the application of MRT” or Maximal Restraint Technique that was a technique approved by the Minneapolis Police Department. (Id. at 10.)

Dismissal of Count II–Third-Degree, Depraved Mind Murder

“Count II of the Amended Complaint charges Mr. Chauvin with Third Degree Murder— Perpetrating Eminently Dangerous Act and Evincing Depraved Mind, in violation of Minn. Stat. § 609.195(a). Under Minnesota law, however, ‘[d]epraved mind murder cannot occur where the defendant’s actions were focused on a specific person.’ State v. Barnes, 713 N.W.2d 325, 331 (Minn. 2006) (citing State v. Wahlberg, 296 N.W.2d 408, 417 (Minn. 1980)).” (Id. at 11.)

“As the Minnesota Supreme Court has explained, ‘We have made clear that the statute covers only acts committed without special regard to the effect on any particular person or persons.’ State v. Zumberge, 888 N.W.2d 688, 698 (Minn. 2017). ‘[T]he act must be committed without a special design upon the particular person or persons with whose murder the accused is charged.’ Id. (appellant’s claims that he shot “toward” not “at” the decedent precludes a third degree murder instruction) (citation omitted). Third degree murder is reserved to cover cases where the act was ‘reckless or wanton,’ such as firing a gun into a bus or driving a vehicle into a crowd. Wahlberg, 296 N.W.2d at 417. That is simply not the case here.” (Id. at 11.)

Dismissal of Count III—Culpable Negligence Manslaughter

 This charge requires proof of the actor’s “objective gross negligence” and “subjective recklessness.” (Id. at 12.)

Under Minnesota cases, “objective gross negligence” is an act that was “a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.” Here, Chauvin as a police officer in an emergency situation under Minnesota case law had ‘significant independent judgment and discretion’ . . . ‘precisely because a more stringent standard could inhibit action.’ (Id. at 12-13.)

Chauvin’s attorney then argues,  “Such discretion often comes into play when an officer must gauge how much force to use in order to effect an arrest. The amount of force authorized is dependent on the subject being arrested, the circumstances of the arrest, and the ever-developing fact pattern of any arrest scenario.” (Id. at 13.)

Here, “Chauvin was acting within his duties to execute a legitimate legal process—assisting other officers with effecting their arrest of George Floyd,” who was actively resisting arrest when Chauvin arrived on the scene. Quoting Minnesota cases, in such cases, an ‘officer may use all necessary and lawful means to make the arrest’ and is authorized “to escalate their use of force, short of deadly force, as necessary.” Here, under MDP policy, the use of MRT was authorized because Floyd was ‘handcuffed, . . .combative and still pose a threat to themselves, officers or others, or could cause significant damage to property if not properly restrained.” (Id. at 14-19.)

Moreover, the evidence shows Chauvin performed the MRT in accordance with MPD training materials and manuals and did not actually and consciously disregard the risks associated with MRT. And the Hennepin County Medical Examiner found no bruising on Floyd’s neck or muscles or neck structures or on his back. (Id. at 14-20.)

Dismissal of All Counts—Chauvin Did Not Cause Floyd’s Death

According to the relevant Minnesota statutes and cases, conviction for homicide requires that ‘the act of the defendant [was] the proximate cause of death of [the victim] without the intervention of an efficient independent force in which the defendant did not participate or which he could not reasonably have foreseen” or that “the defendant’s conduct was a ‘substantial causal factor’ in bringing about the victim’s death.” (Id. at 21.)

Chauvin’s attorney then asserts, “Mr. Chauvin was not the proximate cause of Mr. Floyd’s death, because an ‘independent force’ . . . in which Mr. Chauvin ‘did not participate’ and which ‘he could not reasonably have foreseen’ intervened: Fentanyl.” (Id.)

“It is clear from the evidence that Mr. Floyd was under the influence of narcotics when he encountered the officers and that he most likely died from an opioid overdose. . . . His body contained a lethal dose of fentanyl—[1ng/ml—as well as methamphetamine, at the time of his death.” Indeed, Chauvin quotes the Hennepin County Medical Examiner, Dr. Andrew Baker, telling the prosecutors on June 1, ‘If he were found dead at home alone & no other apparent causes, this could be acceptable to call an OD [overdose].’ [2] But Chauvin’s attorney does not quote the next note: “Baker. I am not saying this killed him.” (Emphasis added.)

Moreover, Chauvin’s attorney does not quote Dr. Baker’s actual autopsy report (5/26/20) that was titled “Cardiopulmonary Arrest complicating Law Enforcement Subdual, Restraint, and Neck Compression” or the County Medical Examiner’s Press Release (05/26/20) with the same statement for “Cause of Death” plus ‘How injury occurred: Decedent experienced a cardiopulmonary arrest while being restrained by law enforcement officer(s)’ and ‘Manner of death: Homicide.’[3]

Also not quoted by Chauvin’s attorney were the June 10 report by the Defense Health Agency concurring with the ‘autopsy findings and the cause of death certificate’ by the Hennepin County Medical Examiner. Or the findings of Dr. Michael Baden and Dr. Allecia Wilson, who were retained by the attorneys for the Floyd family, that found that Floyd ’died of traumatic asphyxia due to the compression of his neck and back during restraint by police’ and ‘Manner of Death’ was ‘homicide.’ State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020).[4]

Chauvin’s attorney admits in this brief that Floyd “told officers that he had suffered from COVID-19.” Moreover, Chauvin arrived at the scene with fellow ex-officer Thao, who testified during an interview by the Bureau of Criminal Apprehension (BCA) and FBI, that when he and Chauvin were driving to join Lane and Keung at the scene they were told on the phone that someone who had appeared to be intoxicated had passed a fake bill at Cup Foods and after arrival Thao had heard Floyd say he had had COVID-19 while he was in the back seat of a squad car before he went to the pavement outside the car and Thao had been worried that Floyd was on drugs.

Chauvin’s attorney boldly states that even though Lane and Keung may have observed signs of Floyd’s overdose and medical trauma, “none of this information was shared with Mr. Chauvin. Therefore, “Chauvin was unaware of the potential dangers of using MRT on Mr. Floyd.” (Chauvin Memo at 25-26 (emphasis in original).) This appears to be an unfounded overstatement of the record.

Conclusion

Given the recent filing of this Chauvin motion, as of noon on September 9, the State had not yet responded to this motion, but clearly it will oppose same before the court considers and rules on the four dismissal motions on the briefs and record.

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[1] Defendant’s Notice of Motions and Motions To Dismiss, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020);  Memorandum of Law in Support of Defendant’s Motion To Dismiss, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Defendant’s Exhibit List in Support of Motion To Dismiss for Lack of Probable Cause, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Hennepin County Medical Examiner’s autopsy report (5/26/20) (Ex. 20),  State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Hennepin County Attorney’s Office memos of interviews of Dr. Andrew Baker (Hennepin County Medical Examiner) on 5/26/20, 5/27/20 & 5/31/20, (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Notes from Hennepin County Attorney’s [6/1/20] interview with Dr. Andrew Baker{Hennepin County Medical Examiner], (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Hennepin County Attorney’s Office summary of communications with Chief Tim Longo, University of Virginia Police Department (5/26/20-6/3/20) (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Defense Health Agency autopsy summary report (6/10/20) (Ex. 19), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Summary of autopsies of Floyd by Drs. Baden and Wilson on behalf of Floyd Family (7/2/20) (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020). See also Raice & Ailworth, George Floyd’s Death Likely Caused by Drug Overdose, Argue Derek Chauvin’s Lawyers, W.S.J. (Aug. 28, 2020); Bailey, In new filing, Derek Chauvin previews his defense, but also seeks dismissal of charges, Wash. Post (Aug. 29, 2020); Olson, Chauvin lawyer: Restraint didn’t kill Floyd, ill health and drug abuse did, StarTribune (Aug. 29, 2020).

[2] Chauvin Memo at 22; Hennepin County Attorney’s Office, Notes from Notes from [6/1/20] interview with Dr. Andrew Baker{Hennepin County Medical Examiner], (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020).

[3] Affidavit of Matthew Frank Exs. 4 & 5 (Aug 10, 2020), State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court Aug. 10, 2020).

[4] Summary of Dr. Michael Baden and Dr. Allecia Wilson’s findings (7/2/20), (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020) (Exs. 6, 19)

 

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).

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).)