Derek Chauvin Faces Roadblocks in Appealing His Conviction and Sentencing for Second-Degree Murder of George Floyd

Derek Chauvin is facing roadblocks to appealing his conviction and sentencing for second-degree murder of George Floyd that was commenced on September 20 with Chauvin’s notice of appeal, statement of the case, motion to proceed in forma pauperis (IPF) in the Minnesota Court of Appeals and motion to stay this appeal pending the Minnesota Supreme Court’s review of his ineligibility determination for a public defender by the Office of the Minnesota Appellate Public Defender (OMAPD).[1]

The first roadblock occurred on September 24 when the clerk of the appellate courts directed Chauvin within 10 days to (1) pay the $550 filing fee; (2) provide proof of service of the notice of appeal on the district court administrator; and (3) provide proof of service of the appeal papers on the county attorney and attorney general.

The second roadblock was the Minnesota Supreme Court’s October 6th rejection of Chauvin’s appeal from OMAPD’s determination of his ineligibility for a Public Defender in this appeal.  [2] (The Court of Appeals in an  October 8th Order stated his request for the same relief was moot.)

That Court of Appeals’ Order also noted that Chauvin must submit a written request of transcripts within 30 days after the filing of the notice of appeal and that his appellate brief must be submitted within 60 days after the court reporter delivers the transcript.

That Court of Appeals’ Order further noted that because he was not represented by counsel, its rules provided that “the case will be submitted on the briefs and record without oral arguments by any party.” If, however, Chauvin subsequently obtains counsel, he may file a motion requesting oral argument.

These details were incorporated in the Court of Appeals’ Order as follows:

  1. On or before October 15 Chauvin “shall file proof of service of the notice of appeal on the Hennepin County District Court Administrator and proof of service of the notice of appeal and statement of the case on the Minnesota Attorney General.”
  2. Chauvin’s “motion to proceed IFP in this court is denied.”
  3. Chauvin’s “motion to stay this appeal is denied.”
  4. “On or before October 22, 2021, [Chauvin] shall pay the $550 filing fee.”
  5. “On or before October 22, 2021, [Chauvin] shall order a transcript of the district court proceedings from the court reporter and make financial arrangements for the court reporter to file a completed transcript certificate by November 12, 2021.”
  6. Chauvin’s “request for oral argument is denied without prejudice to a subsequent motion for oral argument filed by counsel.”

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[1] Olson, Appeals Court: Derek Chauvin can’t make oral arguments unless he hires a lawyer, StarTribune (Oct. 8, 2021); Order, State v. Chauvin, Minn. Ct. App. #A21-1228 (Oct. 8, 2021).

[2] Minnesota Supreme Court Denies Chauvin’s Request for Public Defender, dwkcommentaries (Oct. 8, 2021).

Minnesota Supreme Court Denies Chauvin Request for Public Defender     

On October 6, 2021, the Minnesota Supreme Court denied Derek Chauvin’s request for appointment of a public defender for his appeal of his conviction and sentencing for second-degree murder of George Floyd.[1]

Chauvin’s request apparently was made on September 23, when he stated the following to the Office of the Minnesota Appellate Public Defender (OMAPD):

  • “Due to my incarceration, I do not have the sufficient means to retain private counsel for the appeal.”
  • “I currently have no source of income, besides nominal prison wages, nor do I own any real property or vehicles. I am currently unmarried and have no dependents.”
  • “My only assets are two retirement accounts. I would face a significant penalty for early access to these retirement funds.”
  • “The district court case for which I intend to appeal was paid for by the Minneapolis Peace and Police Officer’s Association, and I have been informed that their obligation to pay for my representation terminated upon my conviction and sentencing,”

The OMAPD denied this request and the Supreme Court’s Order in effect affirmed the OMAPD’s conclusion  that Chauvin had not established that “through any combination of liquid assets and current income [he] would be unable to pay the reasonable costs charged by private counsel” for prosecution of this appeal. (Minn. Stat. sec. 611.17(a)(2).)

As the Court stated, “Having reviewed Chauvin’s request, the information provided regarding his assets and debts, and the OMAPD’s determination, we conclude that Chauvin has not established that he is entitled to appointed representation at this time.” (Unfortunately, this blogger was unable to obtain a copy of the OMAPD determination.)

However, the Supreme Court added that this denial “is without prejudice to a future application for such an appointment.”

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[1]  AP, Minnesota court denies Chauvin’s request for public defender, Wash. Post (Oct. 6, 2021); Olson, Supreme Court denies Chauvin’s request for a public defender for appeals in Floyd murder, StarTribune (Oct. 6, 2021); Sarnoff, Derek Chauvin Appeal: Minnesota State Supreme Court Upholds Denial of Request for Public Defender, Law & Crime (Oct. 6, 2021); Order, In re Application of Derek Chauvin for relief from the Ineligibility Determination of the State Public Defender, Minn. Sup. Ct. # ADM08-8001 (Oct. 6, 2021). See generally List of Posts to dwkcommentaries—Topical: George Floyd Killing.

 

 

 

 

Criminal Cases Over George Floyd Killing: Recent Developments  

As mentioned in previous posts, former Minneapolis police officer Derek Chauvin was charged, tried, convicted and sentenced in Minnesota state trial court for the May 2020 killing of George Floyd[1] and he has been criminally charged in Minnesota federal court for that same killing.[2] The other three former police officers who were so involved (Thomas Lane, J. Alexander Kueng and Tou Thao) also face state and federal criminal charges with their state trial scheduled for March 2022 while their request for prohibition of video or audio coverage of the trial is still pending.[3]

There have been recent developments in these cases.

Minnesota Supreme Court OverturnsThird-Degree Murder Conviction of Mohammed Noor.[4]

Former Minneapolis police Officer Mohammed Noor, after trial in state court, was convicted of third-degree murder and second-degree manslaughter for the July 15, 2017, killing of Justine Ruszczyk Damond, and on September 15, 2021, the Minnesota Supreme Court unanimously reversed the third-degree murder conviction and remanded the case for re-sentencing on the manslaughter charge.

The Supreme Court held that the third-degree murder statute required a “depraved mind” or a “generalized indifference to human life”  and that  requirement cannot be satisfied when a defendant’s conduct is aimed at a single person, as was the case with Noor.

Upon remand to the trial court, Noor will be re-sentenced for his conviction for second-degree manslaughter, which is expected to be four years, which given his imprisonment so far for 28 ½ months means he could be eligible for supervised release in 3.5 months.

This decision raises the question of whether it will affect Chauvin’s sentence of 22 ½ years for the second-degree murder of George Floyd. Although the jury also had found Chauvin guilty for third-degree murder and second-degree manslaughter, the 22 ½ year sentence was only based on conviction for second-degree murder.[5] Therefore, the Noor decision does not directly impact Chauvin’s sentence. Perhaps Chauvin’s attorney will argue on appeal that the third-degree murder charge against Chauvin unfairly impacted the entire case against him and thus calls for complete reversal by the appellate court, but Susan Gaertner, former Ramsey County Attorney, thinks that is highly unlikely. This blogger, a retired attorney without criminal law experience, concurs in that reaction.

Chauvin and the Other Three Defendants Plead to Federal Criminal Charges.[6]

In May 2021, Chauvin and the three other officers were criminally charged in federal court with allegedly using the “color of the law” to deprive Mr. Floyd of his constitutional rights to be “free from the use of unreasonable force” in his May 2020 arrest, and on September 14, 2021, all four entered not guilty pleas in federal court.

The pending motions of the other three officers to be tried separately from Chauvin have not yet been acted upon.

On September 16, Chauvin was arraigned on a separate charge in federal court for alleged use of excessive force in the September 2017 arrest of a 14-year-old boy, and Chauvin entered a not guilty plea to this charge.

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

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

[3]  Defendant’s Motion To Exclude Video and Audio Recording of Proceedings, State v. J. Alexander Kueng, Thomas K. Lane, District Court , Court File NO.: 27-CR-20-12953 & 27-CR-20-12931 (Aug. 25, 2021); State’s Memorandum of Law Opposing Motions To Exclude Audio and Video Recording of Proceedings, District Court File NO.: 27-CR-20-12953 & 27-CR-20-12931 & 27-CR-20-12949 (Sept. 1, 2021).

[4] Minnesota Supreme Court Hears Argument About Scope of Third- Degree Murder Statute, dwkcommentaries.com (June 10, 2021); Xiong & Olson, Supreme Court overturns third-degree murder conviction against ex-Minneapolis police officer Mohammed Noor, StarTribune (Sept. 16, 2021); State v. Noor, Opinion, No. A19-1089 (Minn. Sup. Ct. Sept. 15, 2021).

[5] See. n.1.

[6]  Mannix, Four former Minneapolis officers plead not guilty to federal civil rights charges, StarTribune (Sept. 14, 2001); Olson, Chauvin enters not guilty plea to federal civil rights charge involving a 14-year-old, StarTribune (Sept. 16, 2021); Federal Criminal Case Over George Floyd Killing: Request To Sever Chauvin Case from Three Co-Defendants Cases, dwkcommentaries.com (Aug. 9, 2021).

 

Minnesota Supreme Court Hears Argument About Scope of Third-Degree Murder Statute

On June 9, the Minnesota Supreme Court heard arguments about the scope of Minnesota’s third-degree murder statute, which provides as follows:

”Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.” (Minn. Stat. sec. 609.195 (a).)

These arguments were in the appeal of Mohamed Noor, a former Minneapolis policeman, for his conviction of that crime for the killing in 2017 of  Justine Damond in south Minneapolis and sentenced for same to 12.5 years in prison. The central issue of this appeal was whether this statute applied to a defendant whose actions were directed at only one, specific person.[1]

Noor’s attorney, Caitlinrose Fisher, argued that the statute’s language as well as case law “requires that a defendant’s actions must be directed at more than one person”  and that this law was meant only for such indiscriminate killings.

The prosecutor for Hennepin County, Jean Burdorf, however, argued that nearly all killings by police officers are directed at a specific person and if this statute is interpreted not to apply to such killings, then there could be no such prosecutions under this statute. Noor’s attorney basically agreed, saying, “’It would be very hard to imagine’ that an officer’s “split-second reaction to a perceived threat” would count as a ‘depraved-mind murder.”

Fisher, however, added that other charges, such as manslaughter, could be appropriate in some such cases and that Noor was not contesting his conviction for second-degree manslaughter and urged the Supreme Court to remand the case to the trial court for resentencing on that count with a likely sentence of four years.

The Supreme Court’s decision in this case is directly on point to Derek Chauvin’s conviction for third-degree murder of George Floyd even though his actions were directed at only one individual, namely George Floyd. [2]

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[1] Karnowski (AP), Minnesota 3d-degree murder law at issue in ex-cop’s appeal, StarTribune (June 9, 2021); Killing of Justine Damond, Wikipedia.

[2] Karnowski (AP), EXPlAINER: Noor ruling could have impact for other ex-cops, StarTribune (June 9, 2021).

 

 

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).)