Federal Criminal Trial for Killing of George Floyd: Prosecution Witnesses (Part II) 

On Monday morning (February 7) the federal criminal trial of former Minneapolis policemen (J. Alexander Kueng, Thomas Lane and Tou Thau) resumed in the federal courthouse in St. Paul before U.S. District Judge Paul Magnuson and a jury of 12 and 6 alternates. During the first phase of the trial (January 24-28, 31 and February 1-2), the prosecution presented 11 witnesses.[1]  The following is a summary of the testimony of the eight prosecution witnesses who testified in this resumption of the trial through February 11.[2]

Dr. David M. Systrom, Jr.

A physician at Boston’s Brigham and Women’s Hospital and assistant professor of medicine at Harvard Medical School and an expert witness for the prosecution, Dr. Systrom first described how the lungs and diaphragm work: breathing in compresses the stomach, spleen and liver with carbon dioxide being the waste product of cellular metabolism, and if it does not leave the body, it will build up in blood and tissue (acidosis.)

In his opinion, George Floyd died of asphyxia due to compression of his upper airway and inadequate breathing caused by being held in prone position. Yet this “was an eminently reversible respiratory failure right up until the time he lost consciousness.” It “was quickly reversible if the impediments to breathing were removed.” But they were not removed, and the “fatal combination” of “obstruction and restriction” of his breathing ultimately caused him to lose consciousness and his heart to stop.

Dr. Systrom noted how “Floyd’s position on the ground with his arms cuffed behind his back and the officer on top of him was problematic” as the arms and shoulders work as “adjunct respiratory  muscles” to help create space for full diaphragmatic breathing.  This restricted breathing resulted in low lung volume and inability to draw sufficient breathe leading to complaints about “shortness of breath” followed by Floyd’s loss of consciousness.

Also supporting Systrom’s opinion was Floyd’s end-tidal carbon dioxide level of 73 milliliters of mercury, twice the normal level and “life threatening” and often associated with an increase in the hydrogen ion concentration in the blood and low oxygen. In addition, he testified that there was no evidence suggesting a heart rhythm disorder or effects of methamphetamine or fentanyl.

Even after Floyd’s heart stopped, Dr. Systrom testified, there was still a chance to save him if CPR had been started immediately, but that did not happen.

Nicole Mackenzie

MPD’s medical support coordinator, Mackenzie testified that Kueng and Lane recently were in her MPD academy “emergency medical responder” class. They were taught about the need to roll subjects into the “side recovery position” so they could breathe instead of keeping them prone on their stomachs. They also were taught that responders have a duty of care to people in medical emergencies.

Kueng and Lane, she testified, acted inconsistently with that training when they continued to restrain Floyd after he became compliant and showed clear signs of needing help, including struggling to breathe.

When Mackenzie was asked about Thao, his attorney’s objection was sustained because Thao was not present in the video shown by Mackenzie.

That attorney presented PowerPoint training materials used by MPD until last year showing officers pinning a man down by his neck when responding to an excited delirium call and another showing a nude man punching through a wooden fence and fighting off a horde of police officers trying to subdue him. Under those circumstances, Mackenzie said, “your normal techniques for compliance might not work” and restraining someone, even with a knee, might be a life-saving measure.

Vik Bebarta

Another prosecution expert witness was Vik Bebarta, professor of emergency medicine, toxicology and pharmacology at the University of Colorado in Denver. She testified that Floyd died from “a lack of oxygen to his brain” when he was “suffocated and his airway was closed [and] he could not breathe.” “When the airway is blocked, you pass out, stop breathing and your heart stops.”

In addition, he said that the amounts of methamphetamine and fentanyl were too low to have caused his death. Videos of Floyd in Cupp Foods before the encounter with the police outside showed him carrying a banana and talking to clerks and other customers. Floyd was alert. “There is no sign that he was showing any signs of an imminent drug overdose.”  In contrast, someone “heavily impaired would not laugh or smile or have a conversation.” In addition, Floyd subsequently was able to walk handcuffed with police from his car to the police car across the street.

Bebarta also said Floyd did not display any symptoms typically associated with the excited delirium condition, such as high pain tolerance, superhuman strength and endurance and he did not die from what would be referred to as that condition.

Under cross examination, Bebarta admitted that police officers do not have the education and experience of medical doctors, but they learn basic life support and “have the ability to check a pulse and check for breathing.”

Bebarta also noted the three-minute lag between (a) paramedic Derek Smith’s arriving on the scene and checking Floyd’s carotid artery for a pulse  and (b) the start of chest compressions in the ambulance when every minute of delay in starting CPR reduces a patient’s chances of survival by 10%.

Under cross-examination by Paule, Bebarta says the slang “speedball” refers to Heroin and cocaine. Sometimes people “rectally” take drugs that sometimes is referred to as “hooping.” “Excited delirium” is not a diagnosis and does not have a good list of symptoms, but often shows as agitation with psychosis. Floyd did not exhibit delirium.

McKenzie Anderson

A scientist with the Minnesota Bureau of Criminal Apprehension, Anderson was in charge of processing Floyd’s car and one of the squad cars on May 25, 2020. She testified that pills found in his car tested positive for methamphetamine.

Under cross-examination by Gray, Anderson says on 5/27/20 she seized from Floyd’s car: shoes, strap and blood stains. She did not see or seize any pills. This search was looking for blood evidence, counterfeit money and a cell phone.

She also said that a lab determined that a pill from the squad backseat contained methamphetamine and Floyd’s saliva and thus probably came from his mouth. From Floyd’s car she seized $20 bills that turned out to be counterfeit, which are illegal to possess.

In a December 2020 search of Floyd’s car, she collected two pills that later were identified as a “mixture of fentanyl and methamphetamine.”

Richard Zimmerman

A MPD Lt. and its most senior officer, Zimmerman sais if an officer (from lowest in rank to chief) sees another officer using too much force or doing something illegal, you need to intervene and stop it.

On 5/25/20 at home, he received call to go to 28th & Chicago because an arrestee had to go to hospital. There he met officers outside Cup Foods about 90 minutes after Floyd died. He asked Lane and Kueng what’s going on.

Thomas Lane’s body cam video showed him telling Zimmerman that they did not know Floyd’s condition and that Floyd seemed like he was on something, “just kind of paranoid.” Nor did Lane say that Floyd had been pinned under Chauvin’s knee for more than nine minutes or that the officers could not detect Floyd’s pulse or that he had appeared to stop breathing.

Zimmerman testified, “The knee on the neck—the officers should have intervened at that point and stopped it. . . . It can be deadly.”  And “rank and seniority don’t change the duty to intervene.” Moreover, Zimmerman admitted he had thought poorly of Chauvin and “I think it’s pretty much known throughout the department that he’s a jerk.”

Kelly McCarthy

McCarthy, the Mendota Heights Police Chief, testified in his role as Chair of the Minnesota Board of Peace Officer Standards and Training, which licenses all officers in Minnesota. He said, Once someone is in your custody [as an officer], they are essentially your baby. You have restricted their freedom of movement. . . so there are things they can no longer do for themselves, so because you’re the one who took them into custody, you are now responsible for those things.” These officers’ training includes learning about “positional asphyxia” and the risk of handcuffing someone, use-of-force and civilians’’ constitutional rights. Training on use-of-force and firearms is annually required.

Alyssa Funari

On May 25, 2020, Ms. Funari, then 17 years old, was at Cupp Foods and observed the police restraining George Floyd on the pavement. His distress, she testified, was obvious to several bystanders, as they observed the policemen ignore pleas to relent and render aid. She said she “instantly knew Floyd was in distress. . . He was moving, making facial expressions that  he was in pain. He was telling us he was in pain.” She warned the officers that Floyd was near unconsciousness. At one point, she “observed that over time he was slowly becoming less vocal and he was closing his eyes. He wasn’t able to tell us he was in pain anymore and he was just accepting it.” She said, “Is he talking now? He’s about ready to knock out.” Yet she did not see any of the officers provide aid to Floyd.

Under cross examination by Thao’s attorney, Robert Paule, Funari said, I “believe he [Thao] did look” at the other officers restraining Floyd. “He might not have been watching the whole time, but he knew what was going on.” He turned around “a few times” to observe the other officers and Floyd .

Matthew Vogel

A FBI special agent, Vogel presented snippets of bystander and police video with timelines and transcripts to help the jurors sort out sometimes confusing videos. It included video of Kueng and Lane talking to Sergeant David Pleoger about what had happened, but saying incorrectly that Floyd was still breathing when paramedics arrived and not saying anything about their inability to find Floyd’s pulse.

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[1] Federal Criminal Trial for Killing of George Floyd: Prosecution Witnesses (Part I), dwkcommentaries.com (Feb. 2, 2022).

[2] Olson, Pulmonologist says officers could have saved George Floyd’s life, StarTribune (Feb. 7, 2022); Karnowski & Webber (AP), Lung expert: Officers could have saved George Floyd’s life, AP News (Feb. 7, 2022); Mannix & Olson, Officers ‘inconsistent’ with medical training when they detained George Floyd, says police trainer, StarTribune (Feb. 8, 2022); Karnowski (AP), Police trainer testifies: Officers failed to aid Floyd, Twin Cities Pioneer Press (Feb. 9, 2022); Olson, Second physician testifies George Floyd died of asphyxia, not drugs or heart attack, StarTribune (Feb. 9, 2022); Karnowski (AP), Toxicologist: Drugs, ‘excited delirium’ didn’t kill Floyd, Assoc. Press (Feb. 10, 2022); Xiong & Olson, New footage played in federal trial shows officers did not tell superior that Floyd had no pulse, appeared to stop breathing, StarTribune (Feb. 10, 2022); Karnowski (AP), Lieutenant: Officers should have intervened in Floyd killing, AP (Feb. 10, 2022); Bailey, Officers charged in George Floyd’s killing omitted key details from the scene, Minneapolis officer testifies, Wash. Post (Feb. 10, 2022); Olson & Xiong, New body camera video: Officers didn’t tell second supervisor about restraint of Floyd, StarTribune (Feb. 11, 2022); Forliti & Karnowski, Teen bystander: Knew instantly Floyd was ‘in distress,’ Asoc. Press (Feb. 11, 2022); Live: Federal trial of 3 former Minneapolis officers in George Floyd death, StarTribune.

 

 

 

 

 

 

Federal Criminal Trial for George Floyd Killing: Prosecution Witnesses (Part I)

Here is a summary of the testimony of prosecution witnesses on January 24-28, 31 and February 1-2. On February 2 at 10:00 a.m. the trial was recessed until Monday, February 7, 9:30 a.m. because Defendant Thomas Lane has COVID.[1]

Kimberly Meline.

As the first trial witness, Meline established foundation for various videos of the police encounter with George Floyd on May 25, 2020, near Cup Foods in south Minneapolis. This included synchronizing some videos to play side by side.

A 34-minute video showed officers Kueng and Lane walking into Cup Foods and then walking to the car outside where Floyd is at the steering wheel. Lane points his gun at him and asks him to put his hands on the steering wheel. He does not comply and one of the officers says, “When you’re moving around like that, that makes us think way more is going on than we even know.”

This video then shows Lane and Kueng cuff Floyd and take him to a squad car and try to put him inside. Floyd objects, “I’m not that kind of guy. I’m claustrophobic.” He also says “I can’t breathe.” After Floyd is placed on the pavement near a police vehicle, the video captures him saying, “I can’t breathe. Mama, I love you.”

Another video, this from Kueng’ body-worn camera, was fixed on the passenger-side rear tire of a squad car, as bystanders can be heard shouting from the sidewalk and Floyd is unresponsive. A bystander, Donald Williams, says, “You think that’s cool, bro? You’re a bum for that.” This video also shows Thao holding back a group of bystanders on the sidewalk.

Charles McMillian

McMillian, a 71-year -old neighbor, was the first witness on the scene on May 25, 2020, and told Floyd to get in the back of the squad car and make it easy on himself because “You can’t win.” With tears, McMillian said, “I knew something bad was going to happen to Mr. Floyd . . . that he was going to die.”

Jena Scurry

A 911 dispatcher, Scurry testified that the officers asked for a “Code 2” ambulance without lights and sirens for a “mouth injury.” They did not report that Floyd was having trouble breathing. If they had, she could have sent “rescue” medical help from the fire department which could get to the scene faster than from Hennepin County EMS. A few minutes later she “grew concerned” that the officers appeared so long on a city surveillance camera that she called and reported this to a Third Precinct sergeant

Christopher Martin

At 19 years of age, Martin was working the evening shift at Cup Foods in May 2020 and accepted a blue-hued, obviously counterfeit $20 bill from Floyd to pay for a pack of cigarettes. At the instruction of the store manager, Martin went outside to bring Floyd back inside. Floyd, he testified, looked high and did not want to return to the store so the manager had another employee call 911.

A few moments later Martin saw a crowd outside the store and went outside to see a police officer with his knee or his body weight on Floyd’s neck, who appeared “dead . . . not moving.”

Derek Smith

A paramedic for Hennepin Healthcare, Smith testified that he and his partner arrived at the scene on a Code 2 non-emergency call. He immediately noted that Floyd had large pupils, no pulse and a chest not rising and falling and then told his partner “I think he’s dead. I’d like to provide patient care away from the scene” because “I knew I would have to work cardiac arrest, probably taking off his clothes.” They removed the body to the ambulance and started to set up lifesaving equipment while officer Lane attempted CPR. Yes, Lane was helpful to the paramedics.

Genevieve Hansen

An off-duty Minneapolis firefighter, while on a walk, Hansen came upon the scene near Cup Foods on May 25, 2020, and observed the lights of a squad-car,  “a woman was yelling that they were killing him” and “the amount of people that were on top of one person.” She also noticed “there were no medics or fire [department personnel] there, so there was no medical attention available.” The man on the ground wasn’t moving, his face was really swollen and smashed to the ground. She saw fluid coming from his general body and thought he could have emptied his bladder, which” is a sign of death or near death.” (Later, she says she learned the fluid was runoff from vehicle exhaust.) She was “concerned that he needed help.”

Hansen offered to help and urged one of them (Thao) to check the man’s pulse only to be rebuffed and told to get back on the sidewalk. This officer said something like, “If you’re really a Minneapolis firefighter then you should know better than to get involved.” This prompted Hansen to yell and swear at the officers because the man on the ground needed help immediately and he wasn’t not getting it, so I was just trying everything.”

Jeremy Norton

Norton, a Minneapolis fire captain, arrived at the scene to provide EMS and heard someone yell, “You all killed that man,” to the officers. In the Cup Foods store Norton met and talked with Hansen, who said she thought the officers had killed Floyd. Yet Norton said the officers did not seem concerned. In response to a question by Robert Paule, Thao’s attorney, about “excited delirium,” Norton said it was part of firefighters training, but the American Medical Association had concluded that it lacked scientific evidence as a legitimate diagnosis.

At the end of the day on the 26th, Plunkett for the third time called for a mistrial, but the Judge denied the motion while telling the prosecution to be careful with leading questions.

Katie Blackwell

As a Police Department Inspector, Blackwell oversees training, which includes a medical component and scenarios officers may face in the field. MPD core values: trust, accountability and professional service. The Field Training Handbook asserts these values: (1) public safety and justice, not just absence of crime; (2) being truthful; (3) holding each other accountable; and (4) not committing public or private conduct that would sully the department.” Phases of training: (1) being in the field with a field training officer, getting comfortable with the public and computer system; and (2) being in a different precinct with a different field training officer.

MPD Code of Conduct: all employees to obey the code of conduct, rules, ordinances, laws. “The integrity of police service is based on truthfulness.” Other sections talk about being fair, unbiased and professional. “Required to immediately report any violation of rules, including but not limited to unreasonable use of force—regardless of rank.” Use of force starts with police presence and escalates to use of force. Use the lowest level of force necessary to detain someone. Once there is compliance, force stops. “Sanctity of life and protection of the public should be the cornerstones of MPD’s use of force policy.” If a person has stopped resisting, the person is complying. This includes protecting persons suspected of violating the law from police use of unnecessary force. Officers have a duty “to stop or attempt to stop another officer when force is being inappropriately applied or is no longer required.”

The Department’s officers have “a duty to intervene because there is an obligation for sanctity of life to protect the public and fellow employees.” This includes a “duty to “stop or attempt to stop” another officer ”when force is being inappropriately applied or is no longer required.” It also includes “rendering medical aid consistent with training, including CPR, chest seal/tourniquet, administering Narcan, checking breathing. These requirements take into consideration an individual’s medical conditions, mental impairment, developmental disability, physical limitations, language barriers, drug or alcohol use and behavioral crisis.

MPD policy defines neck restraint as “restricting the blood flow” and “chokehold” can be used before shooting someone. Although policy says “neck restraint” can be used with a leg, officers are not trained to do so. “Conscious neck restraint” can be used when someone is actively resisting arrest and usually takes 15 seconds. Hobble is used to prevent someone from kicking and being combative. Prone position sometimes is used to get someone handcuffed, but then turn the person on his or her side so they can breathe easier.

“Sanctity of life and protection of public shall be the cornerstones of the MPD’s use of force policy. No matter what kind of force we’re using, we have to protect people.” “MPD employees shall only use the amount of force ‘objectively reasonable’ in light of circumstances: the amount and type of force that would be considered rational and logical to an objective officer on the scene, supported by facts and circumstances known to an officer at the time the force was used.”  Force can be used for “lawful arrest, execution of legal process, enforcing order of court, legal duties.”

MPD crisis intervention policy requires police to treat vulnerable people with compassion. Must call EMS and “render first aid until EMS gets there.” MPD policy for police to not stop people from videotaping police events.

Blackwell worked with Chauvin at third precinct for many years.

Blackwell reviewed Thao’s 2018 training–“Defensive Tactics In-Service.” It said, “Sanctity of life and protection of public. Based on 4th amendment reasonableness standard. Restraint is a form of force. Proportional force based on what the subject is doing. Need to use lowest level of force and justify any use of higher level.” Use of force: active aggression (being combative or trying to assault), active resistance, passive resistance and flight.

MPD academy tries to get officers comfortable correcting one another. “You will be held responsible for your actions and inactions.”

Blackwell also testified that the first officers on the scene, Lane and Kueng, under MPD policy, were in charge of the scene and should not have deferred to Chauvin, especially when Chauvin violated policy by putting his knee on Floyd’s neck and not removing it as Floyd was gasping for air and ultimately dying.

Initially Floyd showed active resistance and aggression when officers were trying to put him in back seat of squad car, which would have justified the officers using a taser on him.

Chauvin’s actions were inconsistent with policy when he had his knee on Floyd’s neck and pulled on his hand for “pain compliance.”

Three of the four officers who arrested and restrained Floyd did not act in accordance with use-of-force policy. Officers were not really communicating with each other. When Floyd went unconscious they were supposed to move him, but did not do so. Lane held Floyd’s legs. They did not move Floyd on his side as they were supposed to. Lane suggested doing so, but no one did so. When Floyd went unconscious, officers were supposed to render aid, but they did not do so. When Floyd had no pulse, they were supposed to perform medical aid, but they did not do so. MPD policy requires an officer to intervene to stop use of inappropriate force. The three officers failed in their duty to intervene.

There was a crowd of bystanders, but they were on sidewalk following orders and were not posing any threat to the officers.

Plunkett cross-examination: Blackwell disagrees with assertion that senior leadership establishes culture of organization and training. Instead recruits should mirror in field what they learned in training. Policy manual has 537 pages, and officers are supposed to know it. There are annual tests of some parts. DOJ is investigating pattern and practice of MPD, including alleged deficiency in officer training.

Paule cross-examination. The attorney for ex-officer Thao, Robert Paule, got Blackwell to agree that a MPD training slideshow cited a draft report by the city’s civil rights division that found a sharp rise in ketamine injections of detainees and examples of police asking emergency medical services for the sedative by name and joking about its powerful effects along with a footnote dismissing the report as a “reckless use of anecdote” that will “prevent the saving of lives.” Blackwell also testified, “If you’re dealing with somebody who is displaying signs of excited delirium, it can be very dangerous.”

Paule also identified other slides from the MPD course on its “excited delirium” training that had officers pinning down suspects with their knees, similar to the way Chauvin pinned down Floyd.

Dr. Bradford Wankhede Langenfeld

Langenfeld went into stabilization room for most critical patients to await Floyd’s arrival as a cardiac arrest patient. Floyd arrived at 8:55 p.m. Upon arrival, paramedics said no one at scene had started CPR before they arrived, and a minute’s delay in CPR reduces chances of success from cardiac arrest by 10-15%. But paramedics in ambulance tried resuscitation for about 30 minutes before arrival at hospital, but never found a pulse.

At hospital they continued compressions with Lucas device and gained additional IV access for more medications. Replaced windpipe tube with a more secure tube for better venting and arterial line. Dr. Langenfeld believes most likely cause of this cardiac arrest was “mechanical asphyxia” (inability to expand chest wall) and “excited delirium” or “severe agitated state.” There was a mouth injury which made him think the patient had been pinned down in prone position. Fentanyl by itself is a depressant, shows down breathing, but would not lead to severe agitated state.

After Dr. Langenfeld had worked on Floyd for about 30 minutes, cardiac arrest had come to near standstill; no clinical improvement; so doctor declared Floyd dead. When the heart stops, tissues and brain start to die, and irreversible brain damage occurs within 4-6 minutes of cardiac arrest.

Cross-examination by Paule (Thau’s attorney). Dr. Langenfeld says excited delirium is controversial because it is used almost exclusively when law enforcement is restraining an individual and predominantly people of color, thus raising concerns about bias and most often it is a pre-hospital diagnosis, which is condemned by  AMA and which typically is used for someone who is delirious, erratic, unable to be verbally de-escalated, sweaty.

If Floyd had been using illegal drugs and sweating profusely, this possibly could have been cause of cardiac arrest.

Cross examination by Plunkett (Kueng’s attorney). If someone had consumed methamphetamine and fentanyl and then was struggling hard, that possibly could kill someone.

Redirect by prosecution. Cardiac arrest from acidosis can be reversed by prompt chest compressions and CPR ventilation. After reviewing video of Floyd’s arrest, Dr. Langenfeld believes Floyd was not subject to severe agitation that would lead to cardiac arrest.

Andrew Baker

A medical examiner, Baker examined Floyd at HCMC and testified that his heart and lungs stopped due to restraint by law enforcement. “ I view his death as being multifactorial” due to the duration of his “interaction with law enforcement” for 9.5 minutes along with his already enlarged heart and hardened arteries. However, he denied that the fentanyl and methamphetamine found in Floyd’s body and carbon monoxide poisoning were contributory factors.

Under cross examination by attorney Paule, Baker testified that he and his office were targets of protests after Hennepin County Attorney Mike Freeman had published Baker’s preliminary autopsy findings that highlighted Floyd’s cardiovascular disease and “potential intoxicants” in his body. These protests included threatening phone calls, some of which targeted specific employees in his office and their families and included their home addresses. But Baker said the final conclusions on Floyd’s death were neither partisan nor driven by outside pressure. Baker also testified that excited delirium was not a cause of death.

Kueng’s attorney, Thomas Plunkett, showed Baker a photo of Kueng restraining Floyd, and Baker said that that position “wouldn’t impair his ability to breathe.” Baker gave the same answer to a question by Lane’s attorney (Earl Gray) about Lane’s position on Floyd.

Christopher Douglas

Attorney Gray objected to having Douglas testify because he trained Lane as a corrections officer in 2017 and, therefore, is not relevant. The objection, however, was overruled.

Douglas works for the Hennepin County Department of Community Corrections as the lead safety trainer for the County’s Juvenile Detention Center, where Lane worked before joining MPD. Douglas testified regarding the training about positional asphyxia that Lane would have received at that Center in 2017 and 2018. It emphasized getting “control of the subject quickly,” using arms instead of body weight while avoiding putting pressure on the torso and neck and monitoring the subject for medical issues and claiming inability to breathe. The trainees also learn de-escalation and physical restraint techniques, which aim to keep someone vertical and on their feet making it easier to transport someone and less likely to cause injury.

Comment

According to Holly Bailey, a Washington Post reporter, defense cross examination of Katie Blackwell suggests that a major defense argument will be that “Minneapolis officers are not given adequate scenario training on intervention policies and they operate in a militarized environment where younger officers are strongly discouraged from disagreeing with senior officers.” Thomas Plunkett, Kueng’s attorney, has argued that Kueng had received “inadequate training” and that the U.S. Justice Department currently is investigating the MPD, including its training programs.

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[1]  The above summary of witness testimony is based upon the following newspaper articles: Live: Federal trial of 3 former Minneapolis officers in George Floyd death, StarTribune; Mannix & Olson, Cup Foods clerk who interacted with George Floyd tells jurors of events leading to killing, StarTribune (01/25/22);  Olson & Mannix, Day 3 of testimony underway as paramedic describes how George Floyd was likely dead at scene, StarTribune (1/26/22); Mannix & Olson, ‘I think they killed him:’ Off-duty firefighter testifies of futile attempts to help unresponsive George Floyd, StarTribune (1/26/22); Mannix & Olson, Minneapolis police inspector testifies of training protocol in civil rights trial, StarTribune (1/27/22); Mannix & Olson, Kueng and Lane should have been in charge at George Floyd arrest, protocol not followed, StarTribune (1/28/22);  Mannix & Olson, Defense says poor training, paramilitary culture, stopped officer from intervening in George Floyd’s death, StarTribune (1/28/22); Bailey, Officers charged in George Floyd’s killing had been taught to intervene, police trainer testifies, Wash. Post (1/28/22); Jany & Furst, Minneapolis police training, policies under microscope in trial of 3 ex-cops in George Floyd’s death, StarTribune (1/30/22); Mannix & Olson, Testimony: Minneapolis police trained to ignore city’s civil rights report on ketamine, excited delirium, StarTribune (1/31/22); Olson & Mannix, Defense asks medical examiner about outside pressures during George Floyd death investigation, StarTribune (2/1/22); Olson & Mannix, Trial of ex-Minneapolis cops postponed by COVID diagnosis, StarTribune (2/2/22).

Federal Criminal Trial for George Floyd Killing: Opening Statements

The trial of J. Alexander Kueng, Thomas Lane and Tou Thao began on January 24 with the opening statements of the prosecution and defense attorneys.[1]

Prosecution’s Opening Statement

Assistant U.S. Attorney Samantha Trepel said that when police officers take a person into their custody, those officers are responsible for keeping that ensuring a person’s safety. “In your custody is in your care. It’s not just a moral responsibility, it’s what the law requires under the U.S. Constitution.” Then someone signs “up to carry a gun and wear a badge [it] comes with life or death duties.”

“Here, on May 25, Memorial Day 2020, for second after second, minute after minute, these three CPR-trained defendants stood or knelt next to officer Chauvin as he slowly killed George Floyd right in front of them” and each of them  “made a conscious choice over and over again not to act. They chose not to intervene and stop Chauvin as he killed a man slowly in front of their eyes on a public street in broad daylight.” Eventually  “the window to save Floyd’s life slammed shut.”

Defense Counsels’ Opening Statements

Before their opening statements, at least two defense counsel asked Judge Paul Magnuson to declare a mistrial due to the prosecution’s alleged “argumentative” opening statement, but the Judge denied the request.

Attorney Robert Paule, representing ex-officer Tou Thau, acknowledged “the tragedy” of Mr. Floyd’s death, but “a tragedy is not a crime.” He reminded the jury that the familiar video by a young woman at the scene did not show why the officers were at the scene in the first place– to investigate a report of a counterfeit $20 bill and Mr. Floyd’s erratic behavior and failure to follow officers’ directions.

Attorney Thomas Plunkett said his client, ex-officer J. Alexander Kueng, was a “rookie officer” who was deeply influenced by Chauvin, the most senior officer on the scene with 19 years on the street, a field training officer (FTO) in Third Precinct “for a very long time” and Kueng’s FTO. Such a FTO “has great control over a young officer’s future” in the Department and can recommend the termination of such a newcomer. In order for Kueng to be found guilty, the jury must conclude that he acted willfully, which requires proof that he acted with a bad purpose to disobey the law to deprive Floyd of his rights.

However, there is no such proof. Moreover, the Minneapolis Police Department’s “training on ‘intervention’ is little more than a word on a PowerPoint.” With senior officer Chauvin in charge, Kueng did not have the experience or proper training to deal with the situation as it unfolded or how to intervene. Nevertheless, he checked Floyd’s pulse twice and told Chauvin he could not detect a heartbeat.

The video taken by a bystander was not what Kueng saw. It is not what he perceived. It is not what he experienced.

Attorney  Earl Gray for ex-officer Thomas Lane, emphasized that Floyd at 6 foot four and 225 pounds “was all muscle” and when he reached around in the console of his vehicle, Lane feared he might be reaching for a gun. Later Lane did not put pressure on Mr. Floyd, but just had his hands on the suspect’s feet. Lane suggested to Chauvin they should “hobble” Mr. Floyd on his side, but Chauvin said “no” so it was not done. Lane also suggested that the officers should roll Mr. Floyd on his side, but Chauvin said, “no, he’s good where he is. Lane asked Chauvin if Floyd was experiencing “excited delirium,” when someone after fighting wakes up with super-human strength,” which he learned about at his police training, but Chauvin rejected the suggestion.  When the ambulance arrived, Lane asked to ride with Floyd and performed chest compressions on him and was “not deliberately indifferent at all.”

Finally the attorney said Mr. Lane would testify at the trial.

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[1] Mannix & Walsh, Opening Statements Monday in federal trial of 3 ex-cops implicated in George Floyd’s death, StarTribune (1/24/22); Live: Federal trial of 3 former Minneapolis officers in George Floyd death, StarTribune (1/24/22); Bailey, Opening statements to begin in federal trial over George Floyd’s killing, Wash. Post (1/24/22); Arango, George Floyd’s Civil Rights Are Focus in Opening Arguments of Federal Trial, N.Y. Times (1/24/22); Ajasa, Trial begins of three ex-police officers present at George Floyd murder, Guardian (1/24/22)

 

 

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

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

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

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

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

The Court’s Gag Order[2]

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

Reactions

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

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

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

These motions are ridiculous and should be denied.

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

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

 

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).)