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 and he has been criminally charged in Minnesota federal court for that same killing. 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.
There have been recent developments in these cases.
Minnesota Supreme Court OverturnsThird-Degree Murder Conviction of Mohammed Noor.
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. 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.
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.
On June 25, Hennepin County District Court Judge Peter Cahill entered the following order, “ As to Count I, based on the verdict of the jury finding you guilty of unintentional second-degree murder while committing a felony under Minn. Stat. sec. 609.19, subd. 2(1), it is the judgment of the Court that you now stand convicted of that offense. Pursuant to Minn. Stat. sec. 609.04, Counts II and III remain unadjudicated as they are lesser offenses of Count I.”
Therefore, the “Court commits . . . [Derek Chauvin] to the custody of the Commissioner of Corrections for a period of 270 months [22.5 years]. You are granted credit for 199 days already served.”
With this sentence, the Minnesota Department of Corrections has said that if Chauvin qualifies by good behavior in prison, he would be released from prison on December 10, 2035, which will be when Chauvin is 59 years old, followed by supervised parole until June 8, 2043.
Judge Cahill first reviewed the Minnesota Sentencing Guidelines, which were promulgated “to establish rational and consistent sentencing standards the promote public safety, reduce sentencing disparity, and ensure that the sanctions imposed . . . are proportional to the severity of the . . . offense and the offender’s criminal history.” The Guidelines also establish “presumptive ranges” for the offenses and for most cases, the maximum sentence that may be imposed is at the top of that range.
However, the Guidelines also recognize that there are cases when the guidelines may not be appropriate and that a different sentence may be imposed for “substantial and compelling circumstances,” i.e., when the “defendant’s conduct in the offense . . . was significantly more or less serious than that typically involved in the commission of the crime in question.” (Emphasis in original quotation of Minnesota Supreme Court case.)
Here, the presumptive range of a sentence for second-degree murder is 128 to 180 months with a presumptive sentence of 150 months (12.5 years). To deviate from these guidelines, the court (or jury) must find that there were one or more “aggravating factors” in the crime at issue. Here, the court determined that there were two such “aggravating factors”: Chauvin abused a position of trust and authority and Chauvin treated Mr. Floyd with particular cruelty.
Although the court previously had concluded there were two other aggravating factors–children were present during the commission of the crime and Chauvin committed the crime with the active participation of three other former Minneapolis policemen—Judge Cahill for various reasons declined to use them for determining the sentence.
Judge Cahill then sought “to effectuate the Minnesota guidelines policy of reducing sentencing disparity” by examining Minnesota sentences over that last ten years for murder in the second-degree. For all such sentences, 67% were within the presumptive guidelines range while 20% were upward departures and 13% were downward departures. Moreover, the most common aggravated sentence has been 240 months (20 years) while the average aggravated departure for defendants with a zero criminal history score [like Chauvin] was 278.2 month (23.2 years).
Therefore, the court concluded, “Mr. Chauvin, rather than pursuing the MPD mission [to give citizens ‘voice and respect’], treated Mr. Floyd without respect and denied him the dignity owed to all human beings and which he certainly would have extended to a friend or neighbor. In the Court’s view, 270 months, which amounts to an additional ten years over the presumptive 150-month sentence, is the appropriate sentence.” In other words, “In consideration of all the facts presented at trial, this Court’s experience, and the collective experience of the entire Court over the last ten years, the Court finds the appropriate prison sentence for Mr. Chauvin is 270 months.”
This opinion demonstrates Judge Cahill’s careful attention to factual and legal details. The only part that is questionable, in this blogger’s opinion, is his refusal to consider for sentencing his previous conclusion that another aggravating factors was the presence of children. Compare his previous conclusion on this factors with his stated rationale for not considering it for sentencing:
Sentencing conclusion. “Although four young women were present and observed portions of the nine and a half minutes restraint of Mr. Floyd, none was injured or threatened with physical injury so long as they did not interfere; none had been present during the previous police struggle to get Mr. Floyd into a squad car, were free to leave the scene at any time, they did not know any of the officers or Mr. Floyd and at trial did not present any objective indicia of trauma.”
Previous conclusion. “Children were present on the sidewalk adjoining Chicago Avenue standing only a few feet from where . . . [Chauvin] and the other officers were restraining George Floyd prone in the street and observed Mr. Floyd being asphyxiated as he begged for his life.. . . Although these four children did not observe all the events, they did observe a substantial portion of the . . .[Chauvin’s] use of force and witnesses the last moments of Mr. Floyd’s life.”
This sentencing conclusion, in this blogger’s opinion, is weak in light of the trial testimony of then 17-year-old Darnella Frazier: “When I look at George Floyd I look at my dad, I look at my brothers, I look at my cousins, my uncles because they are all Black,” she said. “I have a Black father, I have Black brothers, I have Black friends. I look at them and how it could have been one of them. It’s been nights I’ve stayed up apologizing to George Floyd for not doing more and not physically interacting and not saving his life, it’s not what I should have done it’s what he [Chauvin] should have done.” Another 17-year-old girl testified at trial, “It was difficult because I felt like there wasn’t really anything I could do. As a bystander I was powerless there, and I was failing to do anything.”
The court’s refusal to consider for sentencing the other aggravating factor of Chauvin’s committing the crime with the assistance of others, however, was justified given the statute’s requirement for sentencing that the others be “offenders,” which has not yet been established with their trial scheduled for this August
At the June 25 hearing, before the Court imposed the above sentence, the Court heard victim impact statements from members of the Floyd family (seven-year-old daughter Gianna, brothers Terrance and Philonise and nephew Brandon Williams), and Chauvin’s mother (Carolyn Pawlenty).
Derek Chauvin also made the following statement. “At this time due to some additional legal matters at hand, I’m not able to give a full, formal statementat this time. Briefly though, I do want to give my condolences to the Floyd family. There’s going to be some other information in the future that would be of interest, and I hope things will give you some peace of mind. Thank you.” (Emphases added.)
No further information was provided as to what this future information will be, but the only thing this blogger can think of that would be of some comfort to the Floyd family would be an overall agreement among Chauvin and the federal and Minnesota prosecutors for Chauvin to plead guilty to all charges and to abandon any appeal from this guilty verdict and judgment in exchange for an agreed sentence to a federal detention facility.
In addition, at this hearing, Assistant Minnesota Attorney General Matthew Frank and defense attorney Erik Nelson made short statements in support of their requested sentences (30 years by the State and probation and parole by the defense).
At the conclusion of the hearing, Judge Cahill said the sentence was “not based on public opinion. I am not basing it on any attempt to send any messages. The job of a trial judge is to apply the law to specific facts.”
On June 24 (the day before the hearing), the Court denied Chauvin’s motions for a new trial and for a Schwartz hearing to investigate the jury’s conduct during the trial. Those denials followed from the following findings of fact and conclusions of law by the court:
“Defendant has failed to demonstrate that the Court abused its discretion or committed error that Defendant was deprived of his constitutional right to a fair trial.”
“Defendant has failed to demonstrate that the State engaged in prosecutorial misconduct such that Defendant was deprived of his constitutional right to a fair trial.”
“Defendant has failed to establish a prima facie case of juror misconduct or that a juror gave false testimony during voir dire to warrant an evidentiary hearing pursuant to Schwarz v. Minneapolis Suburban Bus Co. . . . [and] State v. Ussee. . . .”
Minnesota Attorney General Keith Ellison. Minnesota Attorney General Keith Ellison in a statement published by the Washington Post said, “Chauvin is one of the few police officers ever convicted of murder for a death on the job. Chauvin’s 22½-year sentence, announced Friday, is one of the longest any police officer in the United States has received in modern times for the death of a civilian.”
“But one exceptional case does not solve the problem. Can this conviction help us finally break the cycle of inaction once and for all?”
“It depends whether we act.”
“Prosecutors must act.”
“Prosecutors must commit to vigorous, visible and swift prosecutions of in-custody deaths when there is probable cause that the use of force was unlawful. They should not be afraid to use all the tools the law puts at their disposal. The visibility of prosecutions, to restore and build credibility with the public, is as important as the vigor employed.”
“The Justice Department must also be a partner in prosecuting cases when local prosecutions fail to win convictions — or fail to act. The Biden administration’s return to conducting investigations into biased policing patterns and practices is also welcome.”
“Prosecutions must also be swift. Chauvin was convicted less than a year after he took Floyd’s life. By contrast, it took four years from the death of Laquan McDonald for Chicago police officer Jason Van Dyke to be convicted. We cannot possibly build public trust if we allow prosecutions to take this long.”
“Lawmakers must act.”
“Congress must pass the strongest version of the George Floyd Justice in Policing Act it can pass. Don’t wait for the perfect bill when a meaningful first step is within reach. Remember: the Voting Rights Act of 1965 and the Fair Housing Act of 1968 were passed after the Civil Rights Act of 1964. Enduring, systemic change takes time.”
“At the state level, legislatures should authorize attorneys general to conduct investigations into local law enforcement to bring to light any persistent patterns of misconduct within a given police department. State-based pattern-or-practice investigations — which critically involve both community members and police officers — have proved successful. If states don’t do that, Congress should make it possible for attorneys general to rely on federal authority to conduct these investigations.”
“City councils and county boards must support reform-minded law enforcement leaders and, if necessary, use the power of the purse to compel reform by directing money toward progressive training and holding leadership accountable for outcomes. We must also recognize that, too often, we ask police officers to solve problems they are neither trained nor intended to solve. We must provide people in crisis with comprehensive social services that law enforcement cannot provide, and we must also support officer wellness.”
“Law enforcement must act.”
“Police leadership must be empowered to take meaningful action. Rather than punishing good officers who call out their colleagues’ bad behavior, as sometimes occurs, police departments should celebrate them and commend their service.”
“The Chauvin trial produced some remarkable, even astonishing, moments, with multiple police officers testifying for the prosecution, and with the police chief, in full uniform, testifying that the defendant’s behavior was not a reasonable use of force in line with department policy. Such testimony should become commonplace, not remain a rarity.”’
“This isn’t about creating a culture of ‘snitching” — it’s about creating a culture of accountability that sets and enforces clear professional standards that protect both police officers and community members.”
“Finally, communities must act.”
“It is imperative that communities keep up the pressure for reform and accountability, and finally end the cycle of inaction. My office could not have led the prosecution of Chauvin without the help of ordinary people who courageously bore witness to Floyd’s death, and the pressure from a community that demanded accountability and action.”
President Joe Biden. At the White House on June 25, President Biden responded to a reporter’s question about the sentencing with this comment: “I don’t know all the circumstances that were considered but it seems to me, under the guidelines, that seems to be appropriate.”
Washington Post Editorial. An editorial in the Washington Post said Chauvin’s conviction and sentencing “should bring a measure of satisfaction that justice was served and assure Americans that the system is not hopelessly broken.”
But more broadly , “Policing in the United States could be more effective and less threatening to minority communities. Officers who commit wrongdoings could face more certain punishments. Floyd’s death last spring appeared to spur a reckoning on U.S. policing, but that momentum has slowed in recent months.”
For example, a bipartisan criminal justice reform bill so far has failed to pass in the U.S. Congress. The House of Representatives in March passed a sweeping police reform bill, but Republican opposition in the Senate appears to doom that bill.
Experts’ Reactions. Although the Chauvin case could lead to better police hiring and training, more trust between police and communities and make the public and future jurors more reception to complaints about police interactions with minorities, this case “ doesn’t address deep-rooted issues of race and violence affecting police interactions with minorities [and does not] . . . result in charges or convictions against officers, according to Sheila A.Bedi, a professor at Northwestern University’s Pritzker School of Law, Director of its Community Justice & Civil Rights Clinic and an attorney in use-of-force lawsuits against the Chicago Police Department.
Another professor of criminal justice, Philip Stinson of Bowling Green State University, pointed out that since 2005 only 11 non-federal law officers, including Chauvin, have been convicted of murder for on-duty conduct, the nine who were sentenced before Chauvin received sentences ranging from six years to life behind bars with the median being 15 years.
Floyd Family Attorney’s Reaction. Ben Crump, the attorney for the Floyd family, called for a federal conviction of Chauvin that might lead to a longer sentence.
We now wait to see the results of any appeal of this conviction and sentencing by Chauvin; the results of the August trial of the other three ex-officers in state court and any subsequent appeals; developments in the federal court criminal cases against the four ex-policemen; and the details of any guilty plea agreements by any or all of the four men.
On May 11, Judge Peter Cahill issued an opinion finding that there are “beyond a reasonable doubt” four aggravating factors in the killing of George Floyd last year that clear the way to sentence Derek Chauvin, the fired Minneapolis police officer,to a prison term above state guidelines. 
These factors are the following: (1) Chauvin “abused a position of trust and authority” as a police officer; (2) he “treated George Floyd with particular cruelty;” (3) children were present when Floyd was pinned to the pavement at 38th and Chicago for more than 9 minutes until he died; and (4) Chauvin committed the crime with “active participation” of others, namely three fellow officers.
Under Minnesota law, even though Chauvin was convicted on all three counts—second and third degree murder and second degree manslaughter—he may be sentenced only on the most serious charge (second-degree murder) because all charges stem from one act carried out against one person. Although second-degree murder has a maximum of sentence of 40 years. the practical maximum, say legal experts, is 30 years even with the above aggravating factors.
These legal conclusions come from a 1981 Minnesota Supreme Court case (State v. Evans), which held that generally when an upward departure is justified “the upper limit will be double the presumptive sentence length,” which for someone like Chauvin with no criminal record would be 12 and ½ years.
Ted Sampsell-Jones, a professor at the Mitchell Hamline School of Law and an appellate criminal defense attorney, added that with such a maximum sentence, the first 20 years would be served in prison and the balance on supervised release, if Chauvin qualifies.
The actual sentencing of Chauvin is scheduled for June 25.
On October 21, Hennepin County District Court Judge Peter Cahill, with one exception, denied the four defendants’ motions to dismiss all criminal charges for alleged lack of probable cause in the George Floyd criminal cases. The exception was the charge of third-degree murder against Derek Chauvin, which was dismissed. These orders and the reasons for same are contained in the Court’s 107-page Order and Opinion on the four defendants’’ motions to dismiss for lack of probable cause.
In so doing, the Court properly stressed that under Minnesota law its evaluation of these dismissal motions is “to assess whether the State has come forward with sufficient admissible evidence on each element of the charges . . .to warrant binding each of the Defendants over for trial . . . to accept as true all the allegations made by the State in its Statements of Probable Cause . . . [and to] draw in the State’s favor all inferences that may reasonably be drawn from those facts.” (Pp. 7-8.)
Here, we will review the main points in the court’s sustaining the charges of second-degree unintentional murder and second-degree manslaughter against Derek Chauvin and the charges against the other three defendants (Thomas Lane, J. Alexander Kueng and Tou Thau) for aiding and abetting these charges. Discussion of the dismissal of the third-degree murder charge against Chauvin will be left to the newspaper articles that are cited below.
Finding Probable Cause for Charge of Second-Degree Murder Against Chauvin
Under the above standard for evaluating such dismissal motions, the court concluded that there was probable cause that the prosecution had established probable cause for the following requirements for this crime: (i) Floyd died; (ii) “Chauvin’s conduct was a substantial causal factor in Floyd’s death;” (iii) “Chauvin intentionally inflicted or attempted to inflict bodily harm on Floyd or intended to cause Floyd to fear immediate bodily harm or death;: and (iv) “Chauvin inflicted substantial bodily harm on Floyd.” (Pp. 35-53.)
In the process of reaching these conclusions, the Court said: (i) “Chauvin never relented and never lessened the pressure of his knee against Floyd’s neck even when Floyd pleaded: ‘I can’t breathe. Please, your knew in my neck’’” (p. 39); and (ii) “Notwithstanding Floyd having gone silent and motionless, the mounting evidence of his lost consciousness, the plaintiff cries and demands from the bystanders, and the obvious reality that Floyd was no longer resisting or non-compliant, Chauvin’s demeanor never changed, and he continued kneeling on Floyd’s neck applying constant pressure to pin Floyd’s face to the pavement for an additional two and a half minutes” (p. 41).
These statements followed the Court’s “Factual Background,” which stated, in part, the following:
“The Critical Nine Plus Minutes between 8:19:18 and 8:28:42 P.M.: Floyd Is Subdued and Restrained Prone in the Street, with Chauvin Kneeling on the Back of Floyd’s Neck, Pinning His Face to the Street, Kueng and Lane Restraining and Pinning Floyd’s Back and Legs to the Street, and Thao Maintaining Bystander Watch.” (p. 22).
“Floyd uttered his final words ‘Please,’ at 8:23:55 p.m., and ‘I can’t breathe,’at 8:23:59 p.m.. . . Floyd then fell silent.” (p. 25.)
“Even after Floyd ceased talking and moving and went limp, Defendants maintained their positions.” (p. 25)
“As Floyd lost consciousness and shortly before uttering his final words, Lane asked Chauvin and Kueng: ‘Should we roll him on his side?’ Citing concern ‘about the exited delirium or whatever . . .[and] Chauvin rejected Lane’s suggestion, stating that the ambulance was en route.” (p. 25)
“Neither Lane nor Kueng did anything to challenge Chauvin’s answer. Instead, they remained in the same position and continued to hold down Floyd’s back and legs.” (p. 25)
“After hearing the bystanders’ pleas to check Floyd for a pulse [8:25:40-8-8:26:05 p.m.], Lane asked Kueng if he could detect a pulse. After checking Floyd’s wrist for about ten seconds, Kueng reported: ‘I can’t find one [a pulse].[8:25:45-8:26:00].” (p. 27.)
“Kueng continued to check Floyd for a pulse. About ten seconds later, Kueng sighed, leaned back slightly, and repeated: ‘I can’t find one.” [8:26:07-12.] (p. 27.)
“[8:26:12-18] Upon learning that Keung could not find a pulse, Chauvin squeezed Floyd’s fingers. Floyd did not respond.” (p. 27/)
“Even though Floyd remained unresponsive, the Defendants did not move from their positions. They continued to restrain Floyd—Chauvin with his left knee pressed firmly into Floyd’s neck, Kueng kneeling on Floyd’s back, and Lane holding Floyd’s legs—while Thao kept bystanders back on the sidewalk. They also ignored the off-duty firefighter’s urgent demands that they check Floyd for a pulse and begin chest compressions if he had no pulse. . . None of the Defendants ever attempted PR while Floyd was on the ground.” (pp. 27-28)
“At 8:27 p.m., an ambulance arrived on the scene. . . . Still, Chauvin, Kueng, Lane, and Thao did not move from their positions. . . . Indeed, even as Lane explained to emergency personnel that Floyd was ‘not responsive right now,’ Chauvin kept his knee on Floyd’s neck (8:27:36-38).” (p. 28)
“[F]or more than a minute after the emergency personnel arrived, Chauvin continued to press Floyd face-down into the pavement, Lane knelt over Floyd’s legs, and Thao continued to push back the crowd.” (p. 28)
At 8:28:42 p.m., when the stretcher was ready, Chauvin finally stood up, removing his knee from Floyd’s neck. . . .Floyd remained unresponsive.” (p. 28)
“In total, Floyd was subdued, pinned face-down in the street—with Chauvin’s knee pressing into his neck and Kueng and Lane restraining his back and legs—for more than nine minutes and twenty seconds.(8:19:18-8:28:42 p.m.) For over four minutes and forty seconds, Floyd did not speak. (8:24:00-8:28:42) For almost three and a half minutes, Floyd appeared not to be breathing. (8:25:15-8:28:42 p.m.) And for more than two and a half minutes, the Defendants were unable to locate a pulse. (8:25:10-8:28:42). Yet over that entire time period, Defendants remained in the same positions: Chauvin continued to kneel with his left knee pressed firmly down on Floyd’s neck pinning Floyd’s face into the street, Kueng and Lane remained atop Floyd’s back and legs, and Thao continued to prevent the crowd of concerned citizens from interceding.” (p. 29)
Finding Probable Cause for Charge of Aiding and Abetting Second-Degree Murder Against Other Defendants
Under the previously cited standard for evaluating such dismissal motions, the court concluded “the evidence the State relies upon is sufficient for probable cause purposes for the State’s charges that Thao, Lane and Kueng each independently aided and abetted Floyd’s second-degree unintentional murder by Chauvin.” (p. 79.)
The previously discussed evidence supports a potential jury conclusion “that Lane knew Chauvin was intentionally committing an assault that inflicted substantial bodily harm on Floyd” and that “Lane intended to aid Chauvin in the assault on Floyd.” (Pp. 79-91.) The same was true for Kueng (pp 91-94) and Thao (pp. 94-99).
Additional comments on Thao were required because “at no point was he involved in the efforts to physically restrain Floyd. Rather, his role was primarily to maintain watch over the growing crowd of bystanders.” (Pp. 94-99.) But “a jury could conclude, on the basis of the evidence, that Thao knew that Chauvin was intentionally inflicting substantial bodily harm on Floyd” and that Chauvin’s continuing to kneel on Floyd’s neck for minutes after he had ceased talking, moving, or breathing and knowing that Kueng had not been able to detect a pulse was contrary to MPD policy and could not be a considered a justifiable use of reasonable force.” Moreover, under Minnesota cases, “Active participation in the overt act that constitutes the substantive offense—here, the assault—is not a requirement for aiding and abetting liability” and that “’the lookout’ . . ‘is a classic example’ of an ‘aider and abetter.’”
Finding Probable Cause for Charge of Second-Degree Manslaughter Against Chauvin
Under the previously cited standard for evaluating such dismissal motions, the court concluded there was sufficient evidence for a jury to conclude that Floyd died and that Chauvin caused that death “by culpable negligence, whereby Chauvin created an unreasonable risk and consciously took a chance of causing death or great bodily harm.” (Pp. 67- 75.)
Finding Probable Cause for Charge of Aiding and Abetting Second-Degree Manslaughter Against Other Defendants
Under the previously cited standard for evaluating such dismissal motions, the court concluded that there was probable cause for the charge of aiding and abetting second-degree manslaughter because there was sufficient evidence for (i) Chauvin’s causing Floyd’s death by culpable negligence, whereby he created and unreasonable risk and consciously took a chance of causing death or great bodily harm; (ii) the other three defendants “knew Chauvin by his culpable negligence, created an unreasonable risk and consciously took a chance of causing death or great bodily harm; “ and (iii) the other three defendants “intended that . . .[their] presence or actions aided Chauvin’s commission of that crime.” (Pp. 99-107)
To this retired lawyer bystander, this Order and Memorandum is exceptionally well reasoned, documented and written. Moreover, I think it implicitly signals that the Judge will deny the defense motions to change venue (unless the demonstrations and protests get further out-of-line) and grant the prosecution’s motion for a joint trial of the four cases. An implicit or explicit consideration for Judge Cahill’s deciding the change of venue motions by the four defendants would have to be not wanting to impose the immense burden that would be placed on another district court in the state in taking on this complex case in which so much already has happened.
If I were representing one of these defendants, I would be very worried about my chances for success at trial.
On May 29, Minneapolis’ Hennepin County Attorney, Mike Freeman, issued the first criminal Complaint over the May 25th death of George Floyd. It stated there was probable cause that former Minneapolis Policeman Derek Michael Chauvin had caused the death of George Floyd in a manner that constituted Third Degree Murder and Second Degree Manslaughter under Minnesota law.
On June 3 the above complaint was superseded by a second criminal Complaint against Chauvin that was issued by Minnesota Attorney General Keith Ellison, who had been appointed only two days earlier by Minnesota Governor Tim Walz to assume overall responsibility for the case. This pleading added the charge of second degree murder.
As noted in a prior post, on June 8 Chauvin had his initial hearing in this case and his bail was increased to $1,250,000 without conditions and $1 million with conditions; his next hearing is scheduled for June 29, when he is expected to enter his plea to the charges.
COUNT I: Second Degree Murder (Unintentional While Committing a Felony).
The Complaint alleges In violation of Minnesota Statute 609.19.2(1), “on or about May 25, 2020, in Hennepin County, Minnesota, . . . Chauvin, caused the death of a human being, George Floyd, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force of violence or a drive-by shooting, namely assault in the third degree.”
Section 609.19.2(1) od Minnesota Statutes states, “Whoever does . . . the following is guilty of unintentional murder in the second degree and may be sentenced to imprisonment for not more than 40 years: causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting.”
“Assault” is defined in Minnesota Statutes section 609.02.10 as “(1) an act done with intent to cause fear in another of immediate bodily harm or death; or (2) the intentional infliction of or attempt to inflict bodily harm upon another.” And “assault in the third degree” is defined in section 609.223.1 as “Whoever assaults another and inflicts substantial bodily harm may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.”
‘Bodily harm” is defined in Minnesota Statutes 609.02.7 as “physical pain or injury, illness, or any impairment of physical condition,” while ”substantial bodily harm” in section 609.02.8 is defined as “bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member.”
Thus, the key factual issues for this Count are (1) whether Chauvin’s placing of his knee on Floyd’s neck and not removing that hold was done with intent to cause Floyd to fear immediate bodily harm or death or with intent to inflict or attempt to inflict bodily harm on Floyd; (2) whether Chauvin’s placing of his knee on Floyd’s neck and not removing that hold caused Floyd substantial bodily harm; and (3) whether Chauin’s placing his knee on Floyd’s neck and not removing that hold caused Floyd’s death.
COUNT II: Third Degree Murder (Perpetrating Eminently Dangerous Act and Evincing Depraved Mind)
The Complaint alleges,“In violation of Minnesota Statute 609.195(a),on or about May 25, 2020, in Hennepin County, . . . Chauvin caused the death of another, George Floyd, by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.”
That statute states, “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.”
Thus, the key factual issues for this Count are (1) was Chauvin’s placing his knee on Floyd’s neck and not removing that hold an eminently dangerous act; (2) did Chauvin’s placing his knee on Floyd’s neck and not removing that hold evince a depraved mind; and (3) did Chauvin’s placing his knee on Floyd’s neck and not removing that hold cause Floyd’s death.
The Complaint alleges, In violation of Minnesota Statute 609.205(1), “on or about May 25, 2020, in Hennepin County, Minnesota, . . . [Chauvin] caused the death of another, George Floyd, by his culpable negligence, creating an unreasonable risk and consciously took the chances of causing death or great bodiliy harm to another, George Floyd.”
That statute states, “A person who causes the death of another by . . . [the person’s] culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to [another] is guilty of manslaughter in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.” “Great bodily harm’ is defined as “bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.” (Minn. Stat. sec. 609.02.8.)
Thus, the key fact issues on this Count are (1) did Chauvin’s placing his knee on Floyd’s neck and not removing that hold create an unreasonable risk of causing death or great bodily harm to Floyd; (2) did Chauvin’s placing his knee on Floyd’s neck and not removing that hold consciously take the chances of causing death or great bodily harm to Floyd; and (3) did Chauvin’s placing his knee on Floyd’s neck and not removing that hold cause Floyd’s death.
Statement of Probable Cause
“On May 25, 2020, someone called 911 and reported that a man bought merchandise from a Cup Foods at 3759 Chicago Avenue in Minneapolis, Hennepin County, Minnesota with counterfeit $20 bill. At 8:08 p.m., Minneapolis Police Department (MPD) Officers Thomas Lane and J.A. Kueng arrived with their bodyworn cameras (BWCs) activated and running. The officers learned from store personnel that the man who passed the counterfeit $20 was parked in a car around the corner from the store on 38th Street.”
“BWC video obtained by the Minnesota Bureau of Criminal Apprehension shows that the Officers approached the car, Lane on the driver’s side and Kueng on the passenger side. Three people were in the car; George Floyd was in the driver’s seat, a known adult male was in the passenger seat and a known adult female in the backseat. As Officer Lane began speaking with Mr. Floyd, he pulled his gun out and pointed it at Mr. Floyd’s open window and directed Mr. Floyd to show his hands. When Mr. Floyd put his hands on the steering wheel, Lane put his gun back in its holster.”
“While Officer Kueng was speaking with the front seat passenger, Officer Lane ordered Mr. Floyd out of the car, put his hands on Mr. Floyd and pulled him out of the car. Officer Lane handcuffed Mr. Floyd.”
“Once handcuffed, Mr. Floyd walked with Officer Lane to the sidewalk and sat on the ground at Officer Lane’s direction. When Mr. Floyd sat down he said, “thank you man” and was calm. In a conversation that lasted just under two minutes, Officer Lane asked Mr. Floyd for his name and identification. Officer Lane asked Mr. Floyd if he was “on anything”and noted there was foam at the edges of his mouth. Officer Lane explained that he was arresting Mr. Floyd for passing counterfeit currency.”
“At 8:14 p.m., MPD Officers Kueng and Lane stood Mr. Floyd up and attempted to walk Mr. Floyd to their squad car. As the officers tried to put Mr. Floyd in their squad car, Mr. Floyd stiffened up and fell to the ground. Mr. Floyd told the officers he was not resisting but he did not want to get in the back seat and was claustrophobic.”
“MPD Officers Derek Chauvin (the defendant) and Tou Thao then arrived in a separate squad car.”
“The officers made several attempts to get Mr. Floyd in the backseat of their squad car by pushing him from the driver’s side. As the officers were trying to force Mr. Floyd in the backseat, Mr. Floyd repeatedly said that he could not breathe. Mr. Floyd did not voluntarily sit in the backseat and the officers physically struggled to try to get him in the backseat.”
“[Chauvin] went to the passenger side and tried to get Mr. Floyd into the car from that side and Lane and Kueng assisted.”“[Chauvin] pulled Mr. Floyd out of the passenger side of the squad car at 8:19:38 p.m. and Mr. Floyd went to the ground face down and still handcuffed. Kueng held Mr. Floyd’s back and Lane held hie legs . [Chauvin] placed his left knee in the area of Mr. Floyd’s head and neck. Mr. Floyd said, ‘I can’t breathe’ multiple times and repeatedly said ‘Mama’ and ‘please,’ as well. At one point, Mr. Floyd said ‘I’m about to die.’ [Chauvin] and the other two officers stayed in their positions.”
“One of the officers said, ‘You are talking fine’ to Mr. Floyd as he contintued to move back and forth. Lane asked, ‘should we roll him on his side?’ and [Chauvin] said, ‘ No, staying put where we got him.’ Officer Lane said, ‘I am worried about delirium or whatever.’ [Chauvin] said, ‘That’s why we have him on his stomach.’ [Chauvin] and Kueng held Mr. Floyd’s right hand up. None of the three officers changed their positions.”
“While Mr. Floyd showed slight movements, his movements and sounds decreased until at 8:24:24, Mr. Floyd stopped moving. At 8:25:31 the video appears to show Mr. Floyd ceasing to breathe or speak. Lane said, ‘want to roll him on his side.’ Kueng checked Mr.Floyd’s right wrist for a pulse and said, ‘I couldn’t find one.’ None of the officers moved from their positions.”
“At 8:27:24, [Chauvin] removed his knee from Mr. Floyd’s neck. An ambulance and emergency medical personnel arrived, the officers placed Mr. Floyd on a gurney, and the ambulance left the scene. Mr. Floyd was pronounced dead at Hennepin County Medical Center.”
“The Hennepin County Medical Examiner (ME) conducted Mr. Floyd’s autopsy on May 26, 2020. While the ME did not observe physical findings supportive of mechanical asphyxia, the ME opines that Mr. Floyd died from cardiopulmonary arrest while being restrained by law enforcement officers. The autopsy revealed that Mr. Floyd had arteriosclerotic and hypertensive heart disease, and toxicology testing revealed the presence of fentanyl and evidence pf recent methamphetamine use. The ME opined that the effects of the officers’ restraint of Mr. Floyd, his underlying health conditions, and the presence of the drugs contributed to his death. The ME listed the cause of death as ‘ [c]ardiopulmonary arrest complicating law enforcement subdural, restraint, and neck compression,’ and concluded the manner of death was homicide.”
[Chauvin] and Officers [Lane] and Kueng subdued Mr. Floyd prone to the ground in this manner for nearly 9 minutes. During this time, Mr. Floyd repeatedly stated he could not breathe and his physical condition continued to deteriorate such that force was no longer necessary to control him. [Chauvin] had his knee on Mr. Floyd’s neck for 8 minutes and 46 seconds in total. Two minutes and 53 seconds of this was after Mr. Floyd was non-responsive. Police are trained that this type of restraint with a subject in a prone position is inherently dangerous. Officer Chauvin’s restraint of Mr. Floyd in this manner for a prolonged period was a substantial causal factor in Mr. Floyd’s losing consciousness, constituting substantial bodily harm, and Mr. Floyd’s death as well.”
“[Chauvin] is in custody.”
Analysis of Second Complaint Against Chauvin
In addition to the previously stated factual issues under the Minnesota criminal statutes xfor the three counts of the Complaint, others are raised by the Minneapolis Police Department Policy and Procedures Manual, which at the time recognized both a “choke hold” and “neck restraint” as permissible under certain circumstances.
The Manual stated that a “Choke Hold’ is a “deadly force option” by “applying direct pressure on a person’s trachea or airway (front of the neck), blocking or obstructing the airway.” (Manual sec. 5-311(I).)
“Deadly force” is defined in the Manual, quoting Minn. Stat. sec. 609.066, subd. 2, as “Force which the actor uses with the purpose of causing, or which the actor should reasonably know creates a substantial risk of causing death or great bodily harm.” (Manual sec. 5-302.)
“Neck restraint,” on the other hand, is stated in the Manual as a “non-deadly force option” and is defined as “compressing one or both sides of a person’s neck with an arm or leg, without applying direct pressure to the trachea or airway (front of the neck). Only sworn employees who have received training from the MPD Training Unit are authorized to use neck restraints.” In addition, the Manual “authorizes two types of neck restraints: Conscious Neck Restraint and Unconscious Neck Restraint.”
“The “Conscious Neck Restraint:The subject is placed in a neck restraint with intent to control, and not to render the subject unconscious, by only applying light to moderate pressure.” It “may be used against a subject who is actively resisting.”
The “Unconscious Neck Restraint:The subject is placed in a neck restraint with the intention of rendering the person unconscious by applying adequate pressure.” It “shall only be applied in the following circumstances:
1. On a subject who is exhibiting active aggression, or;
2. For life saving purposes, or;
3. On a subject who is exhibiting active resistance in order to gain control of the subject; and if lesser attempts at control have been or would likely be ineffective.”
These provisions raise the factual issues of whether or not Chauvin was applying “direct pressure” on Mr. Floyd’s “trachea or airway” and thus using a “chokehold.” The other requirement for chokehold seems established: he at least reasonably should have known that this procedure created a “substantial risk of causing death or great bodily harm,” especially after the warnings by bystanders and by Lane and Kueng.
If, however, Chauvin was not applying direct pressure on Mr. Floyd’s trachea or airway and was not applying a “chokehold,” he was applying a “neck restraint.” But the Complaint definitely suggests that Mr. Floyd was not “actively resisting” and thus it was not a”conscious neck restraint.” In addition, the facts alleged in the Complaint strongly suggest that Mr. Floyd was not “exhibiting active aggression . . . [or] resistance. . . and that it was not used for “life saving purposes.” And thus it was not a valid “unconscious neck restraint.” Moreover, had Chauvin received “training from the MPD Training about neck restraints”? If not, then his use of a neck restraint was not authorized.
Criminologists who have seen the videotape of Chauvin’s treatment of Floyd say that Chauvin’s “knee restraint not only puts dangerous pressure on the back of the neck, but that Mr. Floyd was kept lying on his stomach for too long. Both positions. . .run the risk of cutting off someone’s oxygen supply.”
A professor at the University of South Carolina School of Law who studies policing. Seth W. Stoughton, said. “Keeping Mr. Floyd in the facedown position with his hands cuffed behind his back is probably what killed him.” About 20 years ago police training started emphasizing avoiding that prone position. Moreover, Stoughton offered, applying the knee to the back of the neck rather than to the sides risks killing or seriously injuring someone by cutting off the air supply or damaging the cervical spine and other delicate bones in the neck. No department permits such a technique in ordinary circumstances.
Mylan Masson, who directed a law enforcement training course at Hennepin Technical College in Minnesota, said she stopped teaching the knee restraint technique to new police officers after the Eric Garner case in 2014.
These criminologist also said that the fact that Mr. Chauvin kept applying pressure when Mr. Floyd was no longer struggling made it appear to be a case of an officer trying to punish a suspect for doing something the police did not like. Philip M. Stinson, a former police officer and now a criminal justice professor at Bowling State University, said it was “a form of ‘street justice,’ . . . bullying [to teach] someone a lesson—next time you will think twice about what you do.”
As a New York Times journalist observed, “For police trainers and criminologists, the episode appears to be a textbook case of why many police departments around the country have sought to ban outright or at least limit the use of chokeholds or other neck restraints in recent years: The practices have led too often to high-profile deaths.”
An immense debt of gratitude is owed by everyone to the 17-year-old woman who was at the scene and pulled out her cell phone to video record this police encounter.The next day she said, “I started recording as soon as I heard him trying to fight for his life. The world needed to see what I was seeing.” She added, “Stuff like this happens in silence too many times. She hopes her video can in some way bring about “peace and equality. We are tired of police killing us.” Later her attorney said, “She had no idea she would witness and document one of the most important and high-profile police murders in American history. If it wasn’t for her bravery, presence of mind, and steady hand, and her willingness to post the video on Facebook and share her trauma with the world, all four of those police officers would still be on the streets, possibly terrorizing other members of the community.”
Her example should be remembered by everyone should we ever be in a similar situation. Get out your cell phone and video the encounter. Indeed, Minneapolis Police Chief Medaria Arradondo encouraged others to do the same when confronted with such a scene involving officers’ actions. “Record. Record, absolutely. Record, call. Call a friend. Yell out. Call 911. We need a supervisor to the scene. Absolutely. I need to know that. We need to know that. So the community plays a vital role and did two weeks ago.”
Without that video in the George Floyd case, just imagine how difficult it would be to mount such a prosecution.
However, there still will be challenges for the prosecution in this case.
Former Ramsey County Attorney Susan Gaertner said the prosecution needed to be “painstakingly thorough” with this case and that such cases “are way more complicated and the burden on the prosecution is higher than I think the public understands.” Of the same opinion was Thomas Heffelfinger, former U.S. Attorney for Minnesota, who said, “It’s not a slam dunk and these cases never are. These cases are hard to prove and we have to make sure we do it correctly.”
Those comments are perfectly understandable in cases where the policeman has to make split-second decisions when his or her life is at stake. But that is not this case here. So I wonder about these assessments by Gaertner and Heffelfinger even though they are both capable attorneys whom I know and who have significant criminal law experience that I do not share.
Another Minnesota attorney, Stephen Grego, saw the following challenges. First, inflammatory statements from elected officials in Minneapolis may have created substantial pretrial prejudice, leading to a change of venue from Hennepin County, which in turn could decrease minority juror representation. Second, causation will be a contested issue with the defense emphasizing the medical examiner’s findings of “fentanyl intoxication” and “recent methamphetamine use” to argue that Chauvin did not cause the death. Third, Minnesota law gives police officers broad discretion to use force when making an arrest. Fourth, can a person with a “depraved mind” direct his or her actions against a specific individual?