U.S. Resettlement of Refugees and Recent Afghan Evacuees

The U.S. currently is engaged in resettling in this country refugees from around the world under previously established international refugee resettlement processes as well as recent Afghan evacuees under newly modified processes for Afghans.

Here is a summary of the legal requirements and administrative procedures for these important developments.

U.S. Resettlement of Refugees

  1. International Legal Protection of Refuges[1]

In 1951 an international conference of diplomats adopted an international treaty to protect refugees (Convention Relating to the Status of Refugees).

This treaty went into effect or force in April 1954 after its ratification by six states. However, the U.S. did not directly ratify this treaty, but did so indirectly in 1968 when under the leadership of President Lyndon Johnson the U.S. ratified a treaty amendment (Protocol Relating to the Status of Refugees).

The U.S., however, did not adopt implementing legislation until 1980, when President Jimmy Carter led the adoption of the U.S. Refugee Act of 1980, which included the treaty’s following definition of “refugee” (with U.S. express addition for “past” persecution):

  • “ (A)ny person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of [past] persecution or a well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.. . . ”

As of January 20, 2020, there were 146 parties to the Convention and 147 to the Protocol.

  1. International Resettlement of Refugees[2]

After international cooperation on resettlement of specific groups of refugees, 1956-1995, the United Nations High Commissioner for Refugees (UNHCR) in 1995 organized the Annual Tripartite Consultations on Resettlement for the UNHCR, nation states and civil society. By the end of 2019, these consultations had established a global resettlement policy and procedures to attempt to provide locations for such resettlement that can provide the services that refugees need. These procedures have resulted in resettlement of over 1 million refugees: 90 percent of whom came from Myanmar, Syrian Arab Republic, Iraq, Democratic Republic of Congo and Somalia and were resettled in the U.S., Canada, Australia, Sweden and the United Kingdom.

At the end of 2019, the UNHCR estimated there were 26 million refugees in the world, about one half of whom are under the age of 18. This group is part of the 79.5 million forcibly displaced people in the world (the other 53.5 million are forcibly displaced within their own countries and thus not entitled to refugee status).

  1. U.S. Resettlement of Refugees[3]

The U.S. has participated in this international resettlement program under the overall direction of the Departments of State and Homeland Security.

Under U.S. law the U.S. President establishes annual quotas for such resettlements. The largest such quota was 200,000 in 1980 when President Carter led the U.S. adoption of the Refugee Act of 1980. In 1999 under President Clinton the quota was 132,631, and in 2016 under President Obama it was 84,994.

For Fiscal 2019 President Trump reduced the number of refugees for resettlement in U.S. to 15,000 and required cities and counties to file written affirmative consents for such resettlements with the State Department, but a federal court held that requirement was illegal. Nevertheless, many states, including Minnesota, granted such consents along with statements about the many contributions by refugees to their states.

President Biden initially said he would maintain the 15,000 quota set by Trump for this fiscal year, but after strong objections by influential Senators and others, the White House on May 3, 2021, stated the it was revising the quota to 62,500 for this fiscal year although it was unlikely that it would meet that number by that year’s end on 9/30/21. President Biden also said that he intends to increase the quota for the next fiscal year to 125,000.

  1. Refugee Resettlement in Minnesota [4]

From 2005 through 2019 the State of Minnesota had resettled 33,189 refugees. The largest numbers came from Somalia (13,674), Burma (8,604), Ethiopia (2,194), Laos (2,042), Iraq (1,290), Bhutan (1,188) and Liberia (1,171).

For Fiscal 2021 (ending 9/30/21), Minnesota had a resettlement goal of 500, but as of 5/12/21 had received only 30. They came from the Democratic Republic of Congo, Ethiopia, Somalia, Ukraine and Republic of Moldova (Eastern European county and former part of USSR). Because of COVID-19, the goal of 500 probably will not be met.

For Fiscal 2022 (before the evacuation of Afghans), Minnesota expected to have a resettlement goal of 1,900 given President Biden’s stated intent to increase the national total to 125,000.

Such resettlements are coordinated by refugee resettlement agencies in the State: Minnesota Council of Churches (Refugee Services), International Institute of Minnesota, Lutheran Social Services of Minnesota, Catholic Charities of Southern Minnesota and Arrive Ministries.

Minneapolis’ Westminster Presbyterian Church, where this blogger is a member, is launching its Refugee Co-Sponsorship Team of six to twelve individuals under the leadership of three “champions” with guidance of the Minnesota Council of Churches and anticipates receiving its first refugee family this October.

Our Team’s commitment is for four to six months starting with setting up an apartment selected by the Council with furnishings that it and our Team provides; welcoming the family on their arrival at the Minneapolis-St. Paul Airport and transporting them to their apartment;  helping the family’s orientation to their new neighborhood, city and services; transporting them to various meetings and shopping; assisting school registration for any children and adult ESL enrollment; providing information about various public services and obligations; and helping them find employment. In short, being friends to our new residents. The co-sponsorship ends with a closing ceremony, transitioning the relationship to mutual friendship, rather than a continued helping relationship. [5]

U.S. Resettlement of Recent Afghan Evacuees.

The recent turmoil in Afghanistan has resulted  in the U.S. evacuation from that country of approximately 130,000 people (124,000 Afghans and 6,000 U.S. citizens).

Many of the Afghan allies with U.S. special immigrant visa applications and their families who recently escaped Afghanistan were flown from Kabul to Washington, D.C. for their subsequent transfer to U.S. forts in Virginia (Fort Lee),Texas (Fort Bliss) and western Wisconsin (Fort McCoy, which is about 169 miles southeast of Minneapolis). Others were flown to U.S. military bases in other countries for processing and hoped-for transfers to the U.S.[6]

This summary is based upon the cited sources with recognition that this is a very complex and changing situation and readers’ corrections and amplifications are most welcome.

  1. Legal Status of Afghan Evacuees[7]

Most, if not all, of these Afghans have not been through the previously described procedures for resettlement of refugees and have not been determined to meet the requirements for refugee status. (Some articles erroneously refer to them as “Afghan refugees.”)

Instead, they are being vetted by U.S. agencies for meeting the following requirements for Afghan Special Immigrant Visas (“SIVs”):

  • employment in Afghanistan for at least one year between October 7, 2001, and December 31, 2023, by or on behalf of the U.S. government or by the International Security Assistance Force (ISAF), or a successor mission in a capacity that required the applicant to serve as an interpreter or translator for U.S. military personnel while traveling off-base with U.S. military personnel stationed at ISAF or to perform activities for U.S. military personnel stationed at ISAF; and
  • Have experienced or be experiencing an ongoing threat as a consequence of their employment.

Alternatively some Afghans might be eligible for Priority 2 (P-2) designation granting U.S. Refugee Admissions Program access for Afghans and their eligible family members by satisfying one of the following conditions:

  • “Afghans who do not meet the minimum time-in-service for a SIV but who work or worked as employees of contractors, locally-employed staff, interpreters/translators for the U.S. government, U.S. Forces Afghanistan (USFOXRX-A), International Security Assistance Force (ISAF), or Resolute Support;”
  • “Afghans who work or worked for a U.S. government-funded program or project in Afghanistan supported through a U.S. government grant or cooperative agreement;” or
  • “Afghans who are or were employed in Afghistan by a U.S.-based media organization or non-governmental organization.”

Afghans also could be eligible for “the Priority (P-1) program by virtue of their circumstances and apparent need for resettlement who are referred to the P-1 program . . .  by the UN High Commissioner for Refugees (UNHCR), a U.S. embassy, or a designated NGO.”

However, an Associated Press reporter claims that “the majority will arrive without visas as ‘humanitarian parolees,’ lacking a path to legal U.S. residency and the benefits and services offered to traditional refugees, according to U.S. officials and worried aid groups working closely with the government.” Instead, “Afghan parolees who have arrived at U.S. military bases will be eligible for an ad hoc State Department program that provides limited assistance for up to 90 days, including a one-time $1,250 stipend. But they will not have the full range of medical, counseling and resettlement services available to immigrants who arrive through the U.S. refugee program.”

  1. U.S. Administrative Agencies Involved in “Operation Allies Welcome[8]

On August 19, 56 Senators sent a bipartisan letter to President Biden calling for “the urgent evacuation of Afghan Special Immigrant Visa (SIV) applicants and their families, as well as the full and immediate implementation of [the above legislation] to expand the Afghan SIV program and streamline the application process.”

That message was in accord with the Biden Administration’s desires. On August 29, President Biden directed the Department of Homeland Security to be the lead agency coordinating this resettlement effort and that agency’s Secretary (Alejandro N. Mayorkas) simultaneously appointed Robert J. Fenton, Jr. with 29 years of experience in FEMA large-scale response and recovery efforts to lead the interagency Unified Coordination Group in this effort. He will be working with Jack Markell, a former Delaware Governor and now the White House’s coordinator of “Operation Allies Welcome.”

  1. Resettlement of Afghan Evacuees in U.S. [9]

Operation Allies Welcome is asking the nonprofit organizations that have contracted with the U.S. State Department for resettlement of refugees to also handle the resettlement of the Afghan evacuees. This task is made much more difficult by last year’s shrinkage of these agencies caused by President Trump’s reduction of the quota for such resettlement to 15,000 and the associated reduction of federal financial support for same and by the size and unresolved issues about the Afghan evacuees.

  1. Societal Reactions to Afghan Resettlement [10]

There are general reports about positive reactions to such resettlement from U.S. citizens and organizations.

The State of Minnesota did so in an August 19, 2021, letter to President Biden from Minnesota Governor Tim Walz and Lieutenant Governor Peggy Flanagan. It stated that Minnesota “in the past . . . has stepped forward to help those who are fleeing desperate situations and need a safe place to call home” while acknowledging, “New Minnesotans strengthen our communities and contribute to the social fabric of our state. They are our neighbors.” Therefore, “we [in Minnesota] stand ready to work with you and your administration to welcome [Afghan] families as this effort to provide safety and refuge continues.”

Minnesota’s U.S. Senator Amy Klobuchar has voiced a similar opinion by offering her office’s assistance to American citizens and Afghan allies looking to evacuate that country and by signing a bipartisan letter to the President urging support for evacuation efforts.

In addition, Temple Israel of Minneapolis is embarking on a program to help some of these Afghans to resettle in Minnesota and has enlisted Westminster Presbyterian Church as a co-sponsor for such resettlements. The Temple’s program probably springs from the Hebrew Immigrant Aid Society (HIAS) as well as a continuous Jewish presence in the territory of Afghanistan from the 8th century CE until the 20th century.[11]

Conclusion[12]

Westminster’s involvement with immigrants is not new in our 160 years. Indeed, the church was established in 1857 by Scottish and Welsh newcomers on land that had been home to the Dakota people for many generations. In 1870 we established our first global mission partnership after our third pastor had visited China and in the 1880s began a formal ministry teaching English and providing support to Chinese immigrants that continued in the 20th century.

Our church also has partnerships with Protestant churches in Cuba, Cameroon and Palestine.

These Westminster ministries are inspired by various Biblical passages.

The book of Leviticus says, “When an alien resides with you in your land, you shall not oppress the alien. The alien who resides with you shall be to you as the citizen among you. You shall love the sojourner as yourself, for you were sojourners in the land of Egypt. I am the Lord your God.” (Leviticus 19: 33-34.) (The Hebrew word for “alien” is “ger,”which means stranger in the land, one who sojourns among you.)

Jesus, of course, told stories about heroes who are disliked foreigners, like the good Samaritan (Luke 10: 25-37) , or when He welcomes those whom others shun as outsiders, like the Samaritan woman at the well (John 4: 1-26) and when He ignores the then current mandate no to pay attention to people living with leprosy or other illnesses (Matthew 8: 1-3).  As our Pastor, Rev. Tim Hart-Andersen said in his recent sermon, “As Christians, our core conviction insists on hospitality to those deemed other by the world around us—and anyone else known to be the most vulnerable in the community.”

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[1] UNHCR, Convention and Protocol Relating to the Status of RefugeesRefugee Act of 1980; Convention Relating to the Status of Refugees, Wikipedia; List of Posts to dwkcommentaries—Topical: LAW (REFUGEE & Asylum).

[2]  UNHCR, The History of Resettlement (2019).

[3] U.S. State Dep’t, About Refugee AdmissionsU.S. State Governments Celebrate Refugee Accomplishments, dwkcommentaries.com (Feb. 2, 2020); U.S. State Dep’t, Report to Congress on Proposed Refugee Admissions for Fiscal Year 2021 (Oct. 22, 2020); U.S. Reduces Refugee Admissions to 15,000 for Fiscal 2021, dwkcommentaries.com (Oct.  2, 2020); U.S. State Dep’t, Report to Congress on the Proposed Emergency Presidential Determination on Refugee Admissions for Fiscal Year 2021 (Feb. 12, 2021); Joe Biden Raises Trump refugee cap  after backlash, BBC News (May 4, 2021);UNHCR, UNHCR applauds US decision to increase refugee resettlement (May 3, 2001). Minnesota Council of Churches, Refugee Services.

[5]  Minnesota Council of Churches, Refugee Services; Minnesota Council of Churches, Help Afghan Refugees (Aug. 30, 2021); Campbell, Schulze & Krohnke, Our Refugee Family Co-Sponsorship: An Invitation to Love the Sojourner Among Us, Westminster News (Sept. 2021).

[6] U.S. Defense Dep’t, U.S. Seeks to Open More Locations to Aid Evacuation From Kabul, General Says, DOD News (Aug. 21, 2021); Assoc. Press, Afghan refugees arrive, temporarily, in northern Virginia, Wash. Post (Aug. 22, 2021); Assoc. Press, Afghan refugees begin arriving at Fort McCoy in western Wisconsin, StarTribune (Aug. 23, 2021); Musa, The United States Needs an Afghan Refugee Resettlement Act, Foreign Policy (Aug. 19, 2021), ; Baghdassarian & Carney, Special Immigrant Visas for the United States’ Afghan Allies, Lessons Learned from Promises Kept and Broken, Lawfare (Aug. 19, 2021),

[7] State Dep’t, Special Immigrant Visas for Afghans—Who Were Employed by/on behalf of the U.S. Government; State Dep’t, U.S. Refugee Admissions Program Priority Designation 2 for Afghan Nationals (Aug. 2, 2021); Press Release, BREAKING: Senate Passes Shaheen-Ernst Bill to Protect Afghan Allies through SIV Program as Part of Supplemental Spending Bill (July 29, 2021); Emergency Security Supplemental Appropriations Act, 2021, Public Law 117-331, enacted on July 30, 2021; Assoc. Press, For Afghan evacuees arriving to U.S., a tenuous legal status and little financial support, Wash. Post (Sept. 1, 2021).

[8] Shaheen, Ernst Lead Bipartisan Effort Urging the Administration on Immediate Evacuation & Full Implementation of their SIV Legislation Aug. 19, 2021). Homeland Security Dep’t, DHS to Serve as Lead Federal Agency Coordinating Efforts to Resettle Vulnerable Afghans, (Aug. 29, 2021); Sacchetti, Miroff & Demirjian, Biden names former Delaware governor Jack Markell to serve as point person on Afghan resettlement in the United States, Wash. Post (Sept. 3, 2021).

[9] U.S. Refugee Organizations Race to Prepare for Influx of Afghans, W.S.J. (Aug. 31, 2021). Hackman, Afghan Refugees in the U.S.: How They’re Vetted, Where They Are going and How to Help, W.S.J. (Sept. 3, 2021). Assoc. Press, US faith groups unite to help Afghan refugees after war, StarTribune (Sept. 2, 2021).

[10] Office of Governor Walz & Lt. Governor Flanagan, Governor Walz and Lieutenant Governor Peggy Flanagan: Minnesota Stands ready to Welcome Afghan Refugee Families (Aug. 19, 2021); Assoc. Press, Walz extends Minnesota’s welcome mat to Afghan refugees (StarTribune (Aug. 20, 2021). News Release, Klobuchar Announces Office Assistance for Americans and Afghan Allies Evacuating Afghanistan (Aug. 18, 2021).

[11] HIAS Statement on Afghanistan Crisis (Aug. 16, 2021); History of the Jews in Afghanistan, Wikipedia; Oreck, Afghanistan Virtual Jewish History Tour, Jewish Virtual Library; The Jews of Afghanistan, Museum of the Jewish People.  Westminster’s Response to Crisis in Afghanistan (Aug. 8, 2021).

[12] Rev. Timothy Hart-Andersen & Rev. David Tsai Shinn, Sermon: Concerning the Sojourner (June 20, 2021). Westminster Presbyterian Church, Global Partners Ministry Team.

 

Derek Chauvin Trial: Issues for Sentencing of Derek Chauvin 

June 25 is the scheduled date for the Hennepin County District Court hearing on the sentencing of Derek Chauvin for his conviction for second-degree and third-degree murder and second-degree manslaughter of George Floyd.

Already the State and Chauvin have submitted briefs calling for vastly different sentences. The State argued for 30 years imprisonment while Chauvin asked for time already served and probation. This blog already has opined that the State’s argument is persuasive given the court’s prior determination that there were four factors favoring upward sentencing departure and that Chauvin’s argument was ridiculous.[1]

Now we examine Chauvin’s arguments for a new trial and impeaching the jury verdict and the opposing arguments from the State.[2]

Arguments for and Against New Trial

Chauvin’s 42 pages of arguments for a new trial reiterate motions and arguments made and rejected by the court before and during trial: pretrial publicity, change of venue, continuance or new trial, sequestration of the jury, and alleged prosecutorial misconduct. The first 54 pages of the State’s June 16th Memorandum provide exacting details on why this Chauvin argument is not meritorious.

Arguments for and Against  Schwartz Hearing

The last 11 pages of Chauvin’s brief set forth alleged acts of juror misconduct that purportedly justify a hearing to investigate alleged misconduct by two jurors: Juror 96 (Lisa Christiansen), who was an alternate released from jury duty prior to the jury’s consideration of the evidence and deliberation and Juror 52 (Brandon Mitchell).

The State, however, says these claims “are a desperate attempt to escape a lawful verdict, are barred by the law, and not supported by the facts” and should be rejected. (State’s Memorandum at 55-77.)

First, this motion cannot be granted for anything Ms. Christianson did because she was an alternate and excused by the court before the jury heard any evidence and deliberated in reaching a verdict. Moreover, she was truthful in responding to defense counsel’s questions during voir dire. (State’s Memorandum at 75-77.)

Second, Juror 52 (Brandon Mitchell) did serve on the jury and after the conclusion of the trial made public statements about the trial and the jury’s deliberations. Although such statements cannot be considered by the court on such a motion, they reveal that the jury carefully followed the court’s instructions and properly considered only the evidence, that they carefully deliberated after a preliminary vote with each juror expressing why he or she came to a conclusion of guilty on all counts.

Moreover, Mitchell in his written responses to over 69 written questions by the court and nearly 45 minutes of responding to defense counsel’s questions “extensively detailed his pre-existing views on a range of issues, including a “highly favorable opinion” of Black Lives Matter, and his prior impression of the case.

Conclusion

For the foregoing reasons, this blogger believes that the court should reject Chauvin’s motions and impose a sentence of 30 years imprisonment.

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[1] See these posts to dwkcommentaries.com: Derek Chauvin Trial: Week Seven (Conviction) (April 21, 2021); Derek Chauvin Trial: Court Finds Aggravating Factors for Sentencing (May 12, 2021); Derek Chauvin Trial: Arguments About Sentencing of Chauvin (June 7, 2021).

[2] Defendant’s Notice of Motions and Post-Verdict Motions, State v.  Chauvin. Hennepin County District Court, Court File No. 27-CR-20-12646 (May 4, 2021); Memorandum of Law in Support of Defendant’s Post-Verdict Motion, State v. Chauvin. Hennepin County District Court., Court File No. 27-CR-20-12646 (June 2, 2021); State’s Memorandum in Opposition to Defendant’s Post-Verdict Motions, State v..Chauvin. Hennepin County District Court, Court File No. 27-CR-20-12646 (June 16, 2021); Forliti (AP). Prosecutors: New trial not merited for ex-cop in Floyd death, Wash. Post (June 16, 2021)

 

Court Affirms Livestreaming of George Floyd Criminal Trial  

On November 5, Hennepin County District Court Judge Peter Cahill ordered that the joint criminal trial of the four defendants—Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thao–subject to the conditions contained in the order, including livestreaming. Thereafter the State objected to livestreaming while it was supported by the Media Coalition. [1]

On December 18, the Judge affirmed its original order for such coverage of the trial and denied the State’s motion to reconsider that order. [2]

The latest order conceded that the Court’s allowing audio and video coverage exceeds that allowed by Minn. Gen. R. Prac 4.02(d), but pointed out that another provision of these rules (1.02) ‘provides that ‘[a] judge may modify the application of [the General Rules of Practice] in any case to prevent manifest injustice.’

The Court concluded this latest order with this statement.  “[T]he State’s suggested procedures to accommodate the Defendants’ Sixth Amendment rights [to a public trial] and the public’s and press’ First Amendment rights to a public trial would be, at best, inadequate, and at worst, mere lip-service to the Defendants’ and the public’s constitutional rights.” (P. 7.)

Conclusion

With this order and the previous order denying the motions for sanctions against the State for alleged deficiencies in discovery, the only pending motions awaiting decision are (i)  Lane’s motion to reconsider joinder of the four defendants for one trial; (ii) the  State’s objection to evidence of Floyd’s prior incident with the Minneapolis police; and (iii) Chauvin and Lane’s objections to the State’s intent to offer evidence of prior incidents involving Chauvin’s alleged use of excessive force.[3]

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[1] Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing, dwkcommentaries.com (Nov. 5, 2020)(order for livestreaming); Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases, dwkcommentaries.com (Nov. 18, 2020)(includes State’s objection to livestreaming); Recent Developments in George Floyd Criminal Cases, dwkcommentaries.com(Dec. 12, 2020)(summary of State’s arguments against livestreaming); George Floyd Cases: Media for Livestream; Chauvin Criticizes State’s Disclosures, dwkcommentaries.com (Dec. 15, 2020).

[2] Order Denying Motions To Reconsider and Amend Order Allowing Audio and Video Coverage of Trial, State v. Chauvin, Dist. Ct. File 27-CR-20-12646 (Dec. 18, 2020); Sawyer, Judge upholds decision to livestream trial of officers in George Floyd killing, StarTribune (Dec. 18, 2020).

[3] Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases, dwkcommentaries.com (Nov. 18, 2020).

George Floyd Cases: Media for Livestream; Chauvin Criticizes State’s Disclosures

In the George Floyd criminal cases, as previously reported, the State has moved for cancelling the livestreaming of the upcoming trial of the four ex-Minneapolis policemen, and Defendant Tou Thao has requested a delay in the trial and sanctions against the State for alleged misconduct in disclosing evidence.[1]

Now Defendant Derek Chauvin adds his voice to criticism of the State’s evidence disclosures and to requesting postponement of the trial. And the Media Coalition along with three of the defendants reiterate their support for the livestreaming of the trial.

Chauvin’s Motion for Continuance[2]

On December 14th Defendant Derek Chauvin moved for a continuance of the trial from March 8th to a date to be established by the Court and of the deadline for him to make initial expert witness disclosures and for the Court to enter “any further relief the court deems just.”

These requests stem from the State’s alleged failure to provide timely discovery disclosures and to have done so in a disorganized and confusing manner, including hiding important documents in unimportant and duplicative materials.

These problems have “caused the defense to spend significant time, material and financial resources to simply organize the materials into a coherent case file,” which will be provided to expert witnesses for the defense. This is especially important for Chauvin because “the global profile of this case has also contributed to the delay in retaining experts willing or able to participate.”

This request was similar to the December 11th motion by Defendant Thao to delay the trial from March 8 to July 5 and for sanctions against the prosecution for its alleged delay in sharing important evidence with the defense.

Media Coalition’s Supports Trial’s Livestreaming[3]

On December 14, the Media Coalition opposed the State’s request for reconsideration of the Court’s previous order allowing audio and video livestreaming of the trial. The Coalition opened this brief with the assertion that “never before, in the history of this country, has there been a criminal trial like the one scheduled in these cases. While there have been big, important cases, few, if any, gave rise to social justice movements the size of what George Floyd inspired. None of them, meanwhile, went to trial at a time when a deadly pandemic had the country in its clutches and when—simultaneously—the country had in its own clutches the technology to livestream a trial around the world.”

According to the Coalition, the Court’s November 4 Order “allowing livestreaming of the trial with certain conditions is a reasonable and appropriate response to these challenging circumstances. Moreover, “Defendants, who have a Sixth Amendment right to a public trial, do not challenge this approach. “

According to the Coalition, the State’s motion for reconsideration of this solution “cites no clash of constitutional principles. . . . Instead, it expresses vague and speculative concerns regarding witnesses’ perceived reluctance to testify if they know cameras are present.” The State relies on Minn. R. Gen. Prac. 4.02, but “in adopting Rule 4.02 as a pilot program in 2015, the Minnesota Supreme Court made clear that ‘[t]he media’s right to be present at public court proceedings as a representative of the public is not at issue here.’”  For the George Floyd cases,  “strict adherence to that rule would violate the First Amendment, which guarantees not just a theoretical right of access but an actual, meaningful right of access.”

Therefore, says the Media Coalition, the Court should deny the State’s motion for reconsideration. this position was supported by Defendants Derrek Chauvin, J. Alexander Kueng and Tou Thao.

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[1] See these posts to dwkcommentaries.com: More Details on 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 11. 2020); Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing (Nov. 5, 2020); Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases (Nov. 18, 2020); Recent Developments in George Floyd Criminal Cases (Dec. 12, 2020).

[2]  Defendant’s Notice of Motion and Motion for Continuance, State v. Chauvin,  Court file No. 27-CR-20-12648 (Hennepin County District Court Dec. 14, 2020); Affidavit of Eric J. Nelson, State v. Chauvin,  Court file No. 27-CR-20-12648 (Hennepin County District Court Dec. 14, 2020); Xiong, Defense attorney in George Floyd case says prosecutors shared disorganized, duplicate evidence, StarTribune (Dec. 14, 2020); Bailey, Former Minneapolis Police Officers in George Floyd killing seek trial delay, Wash. Post (Dec. 14, 2020).

[3]  Xiong, Media coalition pushes back on George Floyd prosecution, asks to livestream trial, StarTribune Dec. 14, 2020); Media Coalition’s Opposition to State’s Motion for Reconsideration of Order Allowing Audio and Video Coverage of Trial, State v. Chauvin, Court File  No. 27-CR-20-12648 (Hennepin County District Court Dec. 14, 2020); Defendant’s Memorandum of Law Opposing the State’s Motion for Reconsideration, State v. Chauvin, Court File No. 27-CR-20-12648 (Hennepin County District Court Dec. 14, 2020); Defendant’s Reply to the State’s Motion To Reconsider Cameras in the Courtroom, State v. Kueng, Court File No.: 27-CR-20-12953 (Hennepin County District Court Dec. 14, 2020); Defense Objection to State’s Motion for Reconsideration, State v. Thao, Court File No. 27-CR-20-12949 Hennepin County District Court Dec. 14, 2020).

 

 

Recent Developments in George Floyd Criminal Cases

Since the filing of criminal charges against four former Minneapolis police officers over the May 25th death of George Floyd there have been many submissions to the court, pretrial hearings and court orders that have been summarized in previous posts.[1]  Now we look at the developments in the cases since November 18.

Kueng’s Supplemental Offer of Proof Regarding Floyd’s 5/6/19 Incident [2]

On November 23, Defendant Kueng submitted records of his attorney’s interviews of four other police officers involved in the May 6, 2019 Minneapolis arrest of Mr. Floyd as an offer of proof to admit evidence of that arrest at trial.

State’s Disclosure of Expert Witnesses [3]

 On November 24, the State of Minnesota disclosed the following potential expert witnesses and reports:

  • Michael Berkow;
  • John J. Ryan,
  • William Louis Manion, M.D.
  • Glenn G. Hardin, MPH, DABFT
  • William Louis Manion, M.D.,
  • S. Charles Schulz, II,
  • Michael M. Baden, M.D.,
  • Theodore C. Chan, M.D.,
  • Sellman Charles Schulz, II, M.D.,
  • Lawson F. Bernstein, Jr., M.D.,
  • Joshua O. Zimmerman,
  • Andrew M. Baker, M.D.,
  • Theodore Chan,
  • Michael M. Baden, M.D.

State’s Arguments Against Livestreaming of Trial [4]

On November 25, the State moved for reconsideration of the order for audio and video coverage of the trial. It made the following points:

  • “The Minnesota General Rules of Practice . . . permit audio or visual recordings of criminal trials, but only if the State and Defendants have consented ‘in writing” or “on the record prior’ to trial.” But at least the State had not so consented.
  • “Moreover, even when the parties consent, the Rules prohibit video and audio recordings of ‘any witness who objects thereto in writing or on the record before testifying.’”
  • Neither the U.S. nor the Minnesota Constitution “requires such recordings.” And the “Sixth Amendment’s core purpose—transparency—can readily be achieved with overflow rooms and closed-circuit cameras. “
  • “[R]ecording and publicly broadcasting witness testimony without consent will cause witnesses to lose their privacy and suffer possible threats of intimidation, and may make it less likely that some witnesses will come forward and testify at trial. “

Defendant Thao Asks for Trial Delay & Sanctions on Prosecution [5]

 On December 11, Defendant Tou Thao’s attorney filed a motion to delay the trial from March 8 to July 5 and for sanctions against the prosecution for its alleged delay in sharing important evidence with the defense.

The motion asserted that the Court’s order of June 30 required the prosecution to share all evidence by August 14, but the prosecution has delayed sharing more than 15,000 pages of evidence over eight separate instances. Most significant was the prosecution’s not providing until October 28 an account of a July 8 interview of Hennepin County Chief Medical Examiner Andrew Baker.. The defense attorney also asked the Court to order the State to pay for the defense attorney’s fees and costs caused by the delays and postpone the defense’s deadline to disclose their expert witnesses.

Dr. Andrew Baker in that July 8 interview described “the mechanism of death as Floyd’s heart and lungs stopping due to the combined effects of his health problems as well as the exertion and restraint involved in Floyd’s interaction with police prior to being on the ground.”  (Emphasis in the brief.)

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[1]  See List of Posts to dwkcommentaries—Topical: George Floyd Killing.

[2]  Defendant’s Supplemental Offer of Proof in Support of Motion To Admit Floyd’s May 6, 2019 Incident, State v. Kueng, Court File No. 27-CR-20-12933 (Hennepin County District Court Nov. 23, 2020).

[3] Supplemental Prosecution Disclosure Pursuant to Rule 9.01, Subd. 1, State v. Chauvin, Court File No. 27-CR-20-12646 (Nov. 24. 2020).

[4] State’s Motion for Reconsideration of Order Allowing Audio and Video Coverage of Trial, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County District Court Nov. 25, 2020);  Xiong, Prosecutors challenge judge’s order allowing livestreamng of George Floyd trial, arguing it could harm testimony, StarTribune (Nov. 30, 3030).

[5] Motion for Sanctions and Hearing Regarding Discovery Violations by the State, State v. Thao, Court File No 27-CR-20-12949 (Hennepin County District Court Dec. 11, 2020); Exhibit 1 to said motion (FBI Memo of Interview of Andrew Baker, MD (09/01/20)); Exhibit 2 to said Motion (Letter, Aug. 7, 2020, Office of Hennepin County Attorney to Assistant U.S. Attorney Jeffrey Paulsen); Defense attorney: Prosecutors in George Floyd case should be sanctioned for delaying sharing evidence, StarTribune (Dec. 11, 2020).

Pandemic Journal (# 34): Grim Report Lightened by News of Vaccines   

One of the objectives of this Journal is recording what it is like to live during the COVID-19 pandemic. Here is another such report. [1]

Current Status of the Pandemic[2]

The cumulative confirmed pandemic statistics as of November 21-22: the world has 55.6 million cases and 1.36 million deaths; the U.S., 12.2 million cases (the most in the world) and 256,000 deaths; and Minnesota, 262,952 cases and 3,201 deaths.

Minnesota like many other states continues to set record numbers of cases and deaths. As of November 21, the month “is on track to become the state’s deadliest month of the pandemic with 744 fatalities [so far],” accounting for 20% of the state’s total Covid-19 deaths. ” “Colder weather, drier conditions and the movement of people indoors have fueled the spread of the virus” in Minnesota and other states in the Upper Midwest.

This surge has put an enormous strain on hospitals and health care workers. For example, in Minnesota last week 79% of  available ICU beds are filled, and in some parts of the state open ICU beds were down to single digits. “More worrisome are the growing infections among health care workers who then cannot care for patients.”  Many hospitals in the state also do not  have stable supplies of masks and personal protective equipment (PPE) and enacted conservation methods — such as bagging then reusing disposal N95 masks.

On November 18, Minnesota Governor Tim Walz issued a detailed 23-page executive order, effective at the end of November 20 for the next four weeks: continuing the requirement for face masks and social distancing; prohibiting (with certain exceptions) social gatherings of individuals who are not members of the same household; limiting social gatherings to individual households; shutting down bars, restaurants, entertainment venues (movie theaters, museums, bowling alleys and fitness clubs); and pausing amateur sports.

In response to the Governor’s order, the management of our condo building on November 20 announced that “effective at the end of [that day] . . .  all association fitness rooms, indoor pools, community rooms, club rooms, libraries and other similar facilities that are currently open will be closed unless otherwise directed by your Board of Directors.”

This new condo building regulation unfortunately has caused me to cancel a weekly gathering in our entertainment center with two or three other male residents over coffee at a table with distanced chairs. There is no set agenda and instead we just start a conversation that usually lasts 60 to 90 minutes. We thereby learn more about one another and become better friends.

More optimistically, two vaccines with 95% success rates have been announced by two ventures (Pfizer/BioNTech and Moderna), one of which last week was submitted to U.S. federal agencies for emergency approval and this coming week the other is expected to make a similar application. In addition, three other companies (AstraZeneca, Johnson & Johnson and Novaax) are developing other vaccines that are still being tested. Everyone is hoping that the first two of these vaccines will be quickly approved by the federal government agencies and initially distributed to the public in mid-December.

My wife and I continue to be healthy while spending most of our time in our condo, except for trips to buy groceries and other supplies and for walks on nicer days. Yesterday just before the closing of our fitness facilities I walked for one mile in 20 minutes on a treadmill and had exercises in our weight room.  Our Thanksgiving Day will be celebrated in the condo by ourselves.

U.S. Presidential Election [3]

On November 3 the U.S. conducted its presidential election with a total popular vote of 153,628,574, which was 65% of all eligible voters, the highest since 1908.

On November 7 the Associated Press reported that the Democratic ticket (Joe Biden and Kamala Harris) won the election with 79,836,131 and 308 electoral votes while the Republican ticket (Donald Trump and Mike Pence) had 73,792,443 popular votes and 232 electoral votes. Thus, the Democratic margin of victory was 6,043,688 popular votes and 76 electoral votes.

President Trump, however, has refused to accept the above results of the election and has issued many tweets claiming the election was rigged and fraudulent. At his direction, the Republican Party or Campaign Team has commenced many lawsuits challenging the popular election in various states, but all of them have been dismissed or withdrawn with many of the judges castigating the poor legal arguments and the lack of supporting evidence offered by the attorneys for the Republicans. In addition, Trump has been attempting, so far unsuccessfully, to get Republican-controlled agencies in various states to appoint Republican electors to the Electoral College despite their popular vote having been for the Biden-Harris ticket.

As a Biden/Harris voter and as a lawyer interested in the rule of law, I have been, and continue to be, absolutely horrified by Trump’s efforts to steal this election.

In addition, Trump has instructed the official in charge of arranging for the president-elect’s transition to the presidency to refuse the  traditional provision of office space for the president-elect and the transition team and for national security briefings.

There has been a lot of speculation as to Trump’s motivation for not accepting the results of the election and engaging in these efforts to change the result of the election. One is his perceived psychological inability to accept defeat. The other is his realization that he faces immense problems if he is no longer president. One is his personal guaranties of over $300 million of loan liabilities of his various corporations. The other is his potential criminal liability for financial crimes, election-law violations, obstruction of justice, public corruption and partisan coercion. [4]

In any event, the Electoral College, under the Constitution, meets on January 6, 2021 to count the electoral votes and on January 15, the new president is inaugurated.

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[1] See List of Posts to dwkcommentaries–Topical: Pandemic Journal.

[2} Our World in Data, Statistics and Research: Coronavirus Pandemic (COVID-19);Kumar, 40 more COVID-19 deaths, 7,219 new cases in Minnesota, StarTribune (Nov. 22, 2020); Snowbeck, November already sets record for COVID-19 deaths in Minnesota, StarTribune (Nov. 21, 2000); Howatt, November on track to be Minnesota’s deadliest month for COVID-19., StarTrib. (Nov. 20, 2020); Olson, ‘No beds anywhere’: Minnesota hospitals strained to limit by COVID-19, StarTribune (Nov. 22, 2020); Governor Walz, Emergency Order 20-99 (Nov. 18, 2020); Pfizer, BioNTech Ask FDA to Authorize Their Covid-19 Vaccine, W.S.J. (Nov. 20, 2020); Robbins & Mueller, AstraZeneca Releases Promising Data on Its Coronavirus Vaccine, N.Y. Times (Nov. 23, 2020).

[3] E.g., Riccardi, Biden approaches 80 million votes in historic victory, AP (Nov. 18, 2020); Trump’s legal team cried vote fraud, but courts found none, StarTribune (Nov. 22, 2020); National Archives, Electoral College Timeline of Events

[4] E.g., Choma, Trump Has a Half Billion in Loans Coming Due. They may Be His Biggest Conflict of Interest Yet, Mother Jones (July/August 2020); Mahler, Individual-1, N.Y. Times Magazine at 35 (Nov. 22, 2020); Jacobs, Trump’s post-presidency will be cluttered with potentially serious legal battles, Wash. Post (Nov. 22, 2020).

 

 

 

 

Court Denies Prosecution’s Motion for Temporary Protective Order in George Floyd Criminal Cases    

On October 15, as anticipated, the Media Coalition filed  its opposition to the Prosecution’s Motion for a Temporary Protective Order in the George Floyd Criminal Cases. Later that same day, the Court held a hearing on that motion.

Media Coalition’s Opposition[1]

The Media Coalition’s 12-page brief “respectfully requests that the Court, consistent with its obligations under the common law, its own rules of access, the First Amendment—and, indeed, consistent . . . with its own August 7 Order and August 11 Memorandum Opinion—immediately make the motion papers that Defendant Thomas K. Lane filed on October 12, 2020, including all video exhibits, available to the press and public and that it deny the State’s motion requesting their continued sealing. The Coalition further requests that the Court deny the State’s Motion for Order Temporarily Restricting Public Access to Motions and Exhibits.”

Hearing on the Motion[2]

At a 25-minute hearing, Judge Peter Cahill denied the Prosecution’s motion, but added he would not allow audio, video or photographs to be attached to future filings by the parties. He said the video of George Floyd’s 2019 arrest in Minneapolis “shows what basically everybody already knows: Floyd was arrested on a previous occasion.” Moreover, the Judge noted that this arrest video was potentially helpful to the prosecution and that previously he had banned evidence of Floyd’s involvement in an armed robbery in Texas before he had moved to Minneapolis.

Subsequent Developments [3]

Immediately after the hearing, Jonathan Mason, an activist with 10K Foundation, interrupted attorney Earl Gray’s interview by a reporter, to protest alleged behavior by Chauvin and to accuse the attorney of “protecting a killer.” (This Foundation’s website says, “We are helping communities preserve their freedom, justice and access to the American dream.”)

Later that same afternoon, a group of about eight protesters walked around the skyway level of the Government Center. Some were yelling, “[Expletive] Derek Chauvin.” One of them, Thomas W. Moseley, a 29-year-old from Blaine, yelled. “Kill Derek Chauvin,” and he was handcuffed, searched and taken away after deputies found a black handgun and several knives on him; he was charged with possession of a dangerous weapon, a felony.

Similar heated protests directed at the defendants and their attorneys (and damage of an attorney’s vehicle). occurred after the September 11th hearing. Thereafter these protestors’ actions were cited by one of the defendants as an additional reason (protecting the safety of the defendants and their attorneys) for transferring the case out of Hennepin County. [4]

These incidents provided additional grounds for defendants’ motions to change the venue of the cases—move them from Hennepin County District Court to another state court in a different county.

Therefore, this blog must reiterate that persons who are interested in justice for George Floyd and want the murder and manslaughter trial(s) to be held in Hennepin County, where the killing occurred, must change their tactics. Such protests merely provide evidence to the defendants’ motions to have the cases transferred to another county court in the state.

==============================

[1] Important Prosecution’s Filings in George Floyd Criminal Cases dwkcommentaries.com (Oct. 14, 2020); Media Coalition’s Opposition to State’s Motion to Restrict Access to Defendant Lane’s October 12 Filings and State’s Motion for a “Temporary” Protective Order (Oct. 15, 2020).

[2] Olson, Judge denies prosecution’s request to seal all filings in Floyd case for at least 48 hours, StarTribune (Oct. 15, 2020).

[3] Olson, n.2; Xiong, Defense Attorney in George floyd case renews call to move ex-cops’ trial after armed protester’s arrest, StarTribune (Oct. 16, 2020).

[4] See these posts and comment to dwkcommentaries.com: Results of 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 12, 2020); Additional Developments in George Floyd Criminal Cases (Oct. 4, 2020); Comment: Woman Charged for Damaging Car of Defendant’s Lawyer in George Floyd Criminal Cases (Oct. 13, 2020).

U.S. Reduces Refugee Admissions to 15,000 for Fiscal 2021

On September 30, 2020, the U.S. State Department announced that President Trump will be submitting to Congress a report that he has determined that the U.S. will reduce its refugee admissions for Fiscal 2021 (October 1, 2020—September 30, 2021) to 15,000. [1]

It must be understood that the individuals who will be admitted to the U.S. under this quota already have been vetted and determined by a U.N. agency to have met the international and U.S. legal definition of “refugee:” someone who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”[2]

The State Department attempted to reduce the adverse humanitarian consequences of this reduction by claiming, “The United States is committed to achieving the best humanitarian outcomes while advancing our foreign policy interests.  Given the dire situation of nearly 80 million displaced people around the world, the mission of American diplomacy is more important than ever.”

Other points of this attempt to reduce the adverse consequences of this decision are the following:

  • “In line with the U.S. National Security Strategy, we are working to assist refugees and other displaced people as close to their homes as possible until they can safely and voluntarily return to rebuild their lives, their communities, and their countries.  As part of our longstanding leadership in international humanitarian crisis response, the United States provided more than $9 billion in humanitarian assistance in Fiscal Year 2019 and nearly $70 billion in humanitarian assistance over the past decade.”
  • “The President’s proposal for refugee resettlement in Fiscal Year 2021 reflects the Administration’s continuing commitment to prioritize the safety and well-being of Americans, especially in light of the ongoing COVID-19 pandemic.  It accounts for the massive backlog in asylum cases – now more than 1.1 million individuals – by prioritizing those who are already in the country seeking humanitarian protection.  It also accounts for the arrival of refugees whose resettlement in the United States was delayed due to the COVID-19 pandemic.”
  • “Refugee resettlement is only one aspect of U.S. humanitarian-based immigration efforts.  Since 1980, America has welcomed almost 3.8 million refugees and asylees, and our country hosts hundreds of thousands more people under other humanitarian immigration categories.  This year’s proposed refugee resettlement program continues that legacy with specific allocations for people who have suffered or fear persecution on the basis of religion; for Iraqis whose assistance to the United States has put them in danger; for refugees from El Salvador, Guatemala, and Honduras; and for refugees from Hong Kong, Cuba, and Venezuela.” (Emphasis added.)

The State Department continued, The President’s proposal for refugee resettlement in Fiscal Year 2021 reflects the Administration’s continuing commitment to prioritize the safety and well-being of Americans, especially in light of the ongoing COVID-19 pandemic.  It accounts for the massive backlog in asylum cases – now more than 1.1 million individuals – by prioritizing those who are already in the country seeking humanitarian protection.  It also accounts for the arrival of refugees whose resettlement in the United States was delayed due to the COVID-19 pandemic.” (Emphasis added.)

According to the State Department, the U.S. anticipates receiving 285,000 asylum requests in the upcoming fiscal year. Such applications must meet the previously mentioned international and U.S. definition of “refugee.” However, the Department’s statement admits the U.S. has a  “massive backlog in asylum cases – now more than 1.1 million individuals.”

After criticisms of this decision emerged from various groups that are discussed below, Secretary of State Michael Pompeo from Rome tried to defend this decision. He said, “We continue to be the single greatest contributor to the relief of humanitarian crisis all around the world, and we will continue to do so. Certainly so long as President Donald Trump is in office, I can promise you this administration is deeply committed to that.”

Reactions [3]

This establishment of a 15,000 quota for refugees is a 3,000 reduction from last year’s quota of 18,000, which was the lowest since the introduction of the U.S. refugee program in 1980. In contrast, in Fiscal 2017, the last full year of the Obama Administration, the quota was 85,000 while the Trump Administration’s first two years (Fiscal 2018 and 2019) set the quotas at 53,000 and 30,000.

This further reduction is seen as another point of President Trump’s “anti-immigrant themes in the closing month of his re-election campaign.” It was done as the President was “unleashing a xenophobic tirade against one of the nation’s most prominent refugees, Representative Ilhan Oma, on Wednesday night at a rally in her home state of Minnesota.”

According to a Washington Post columnist, Catherine Rampell, this presidential decision “in one fell swoop, . . .managed  to betray his country’s humanitarian interests, its national security interests, its economic interests and even his own narrow political interests to boot. . . . The only constituency helped by Trump’s latest cruelty are the bigots and knee-jerk nationalists crafting his policies. For the rest of us, it represents an incalculable loss.”

As anticipated, refugee advocacy groups condemned this decision.

  • Krish O’Mara Vignarajah, CEO of Lutheran Immigration and Refugee Services, called the 15,000 cap an “abdication” of the nation’s humanitarian leadership role in the world. “This absurdly low number is based on nothing more than xenophobic political pandering, and it’s no surprise that this all-time low comes during an election year. We have shown as we have resettled thousands of refugees that there’s no evidence any of these arrivals have endangered Americans. Refugees come to this country after the most extreme vetting procedures, including medical-health checks.”
  • The Immigrant Law Center of Minnesota’s Executive Director, Veena Iyer, said, “Slashing refugee numbers and refusing admission to desperate people whose lives are in danger, especially those whose lives are in danger because of their service to U.S. soldiers and peacekeepers, is appalling. Instead of leading the world in protecting the persecuted, the actions of this administration are an abdication of leadership.”
  • Oxfam America’s Isra Chaker said, “This inexcusable new admissions ceiling is a mere fraction of the number of refugees the United States can and should resettle in a year. During the final year of the previous administration, the U.S. safely and successfully resettled an average of 15,000 refugees every two months.”

The same reaction came from faith-based groups.

  • Scott Arbeiter, president of World Relief, a global Christian aid agency, said Trump has reneged on his promise to protect persecuted Christians in the world. “Instead, we’ve seen the resettlement of refugees from countries known for persecution drop about 90% in some cases over the last four years. This is unconscionable.”
  • Rev. John L. McCullough, head of the Church World Service, which helps resettle refugees in the United States, “described the shrinking of refugee admissions as immoral and urged Congress to . . . recommend changes or seek to influence the decision through budgeting, but is largely powerless to alter the determination. . . .Our values as a nation and as people of faith demand that we take action when people’s lives are in danger.”
  • “The Council on American-Islamic Relations, the nation’s largest Muslim civil rights organization, denounced the chipping away of the refugee program as part of “the ongoing Trump administration effort to maintain systemic anti-Black racism and white supremacy.”
  • Isaiah, a Minnesota faith coalition stated, “We know that we are better off together and that all of us, no matter where we come from or how we pray, want our communities to thrive and our voices to be heard. Overcoming tremendous challenges, Somali Minnesotans bravely moved to Minnesota with their families and have helped make this state vibrant.”

Finally this Trump decision is impeached by recent praises of refugees for their contributions to the economy and culture of 29 states by their governors (both Democrat and Republican).

For example, Minnesota’s Governor Tim Walz’s letter to Secretary Pompeo stated, ““Minnesota has a strong moral tradition of welcoming those who seek refuge. Our state has always stepped forward to help those who are fleeing desperate situations and need a safe place to call home. Refugees strengthen our communities. Bringing new cultures and fresh perspectives, they contribute to the social fabric of our state. Opening businesses and supporting existing ones, they are critical to the success of our economy. Refugees are doctors and bus drivers. They are entrepreneurs and police officers. They are students and teachers. They are our neighbors.”

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[1] State Dep’t, Transmission of the President’s Report to Congress on the Proposed Refugee Admissions for Fiscal Year 2021 (Sept. 30, 2020). 

[2] Convention Relating to the Status of Refugees, Art. 1 (A)(2),189 U.N.T.S. 150, entered into force April 22, 1954; Protocol Relating to the Status of Refugees, Art. I(2), 606 U.N.T.S. 267, entered into force Oct. 4,, 1967; Refugee Act of 1980, 8 U.S.C. sec. 1101(a)(42), Refugee and Asylum Law: The Modern Era, dwkcommentaries.com (July 9, 2010).

[3] U.S. Sets 18,000 Quota for New Refugee Admissions to U.S., dwkcommentareis.com (Nov. 4, 2019); Kanno-Youngs & Shear, Trump Virtually Cuts Off Refugees as He Unleashes a Tirade on Immigrants, N.Y. Times (Oct. 1, 2020); Rampell, Trump’s refugee ceiling is bad for everyone except bigots, Wash. Post (Oct. 1, 2020);  Watson & Lee, Faith Groups decry Trump’s plans for record low refugee cap, Wash. Post (Oct. 1, 2020); Miroff, Trump cuts off refugee cap to lowest level ever, depicts them on campaign trail as a threat and burden, Wash. Post (Oct. 1, 2020);Smith, Trump administration again seeks to slash refugee numbers, StarTribune (Oct. 1, 2020); Rights groups appalled as Trump cuts US refugee admissions to record low, Guardian (Oct. 1, 2020); U.S. State Governments Celebrate Refugees’ Accomplishments, dwkcommentaries.com (Feb. 2, 2020). 

Pandemic Journal (# 29): Current Reflections on COVID-19 Pandemic

As of 8:48 CST on September 20, more than 6,790,500 people in the U.S. had been infected with the coronavirus (the most of any country in the world) and at least 199,500 have died. In Minnesota, there have been 88,773 cases and 5,133 deaths. For the world as a whole the numbers are 30,675,000 cases and 954,427 deaths.[1] These statistics cause one to have sympathy for all those who have or had the disease and all those who have died from it and for all their family members and friends.

I only know two people who have had the coronavirus. One is a nephew who is recovering at his home in another state. The other is Nachito Herrera, a friend and a  famous Cuban-American jazz pianist in Minnesota, whose ICU care with a ventilator was covered by Minnesota media and who recently played several pieces, including his arrangement of “America the Beautiful,” on a public television program. And on September 25 he is scheduled at the Minneapolis’ jazz club, the dakota, for a concert.  [2]

On March 19, 2020, our condo building management instituted new regulations in response to the coronavirus: residents were required to report to the office coronavirus symptoms; all common areas in the building were closed; new practices of cleaning and disinfecting the common areas were adopted; and residents were requested to minimize the number of contractors and visitors entering the building. Since then other measures have been adopted and some of the common areas were reopened with usage restrictions.

Thus, for roughly six months my wife and I have been spending most of our time in our own condo, walking and biking outside on nice days and going to grocery stores for our food supplies. More recently we have been going to doctors and dentists for necessary care, a barber and hair stylist for necessary services and restaurants for occasional meals outside on patios. For example, on an afternoon last week we walked on Nicollet Mall to Barrio Restaurant for delicious tacos at a table on the sidewalk. The Mall, which is Minneapolis’ main street (in normal times) for restaurants, bars, stores and office buildings, now has covered all ground-level windows and glass doors with plywood, most businesses are closed and most of the time very few people are walking around.

For these six months we have not traveled anywhere outside Minneapolis and nearby western suburbs except for two trips to a nearby town: one for our granddaughter’s high school  graduation party and the other for a walk with our son and his family. Thus, we have a great desire to see other places, and this week we plan to  drive to the North Shore of Minnesota for two nights to see the beautiful fall colors of the trees.

We are grateful that we and our family have not caught the virus and are healthy and hope that that will continue. We worry about our sons and their families here and in Ecuador and relatives in Nebraska and elsewhere and pray that they stay healthy.

Last Friday Ruth Bader Ginsburg, a U.S. Supreme Court Justice, died. For many years she has been an inspiring voice against gender and other discrimination. Last night I watched “RBG,” a moving documentary film about her by CNN Films. The film reminded me of what a wonderful human being she was and how we all will miss her.

Then we have to return to reading about the horrible words and actions of President Donald Trump, who immediately said that this week he will nominate a woman to replace Ginsburg on the Supreme Court, and U.S. Senator Mitch McConnell, the Majority Leader of that body, who has said he will lead the effort to have the Senate confirm the nomination as soon as possible and maybe even before the November 3rd presidential election. Many people, including me, fear that the nominee will be very conservative and a threat to undo many of the principles that Ruth Bader Ginsburg struggled for. I, therefore, sent some money to a group supporting Amy McGrath, who is McConnell’s opponent in this year’s election.

Another example of Trump’s insensitive and harmful remarks happened on his visit to Minnesota last Friday when he “extolled at length the battle prowess of” Confederate General Robert E. Lee to audiences that contained descendants of Minnesota men who were members of the Minnesota Volunteer Infantry Regiment that played a vital role for the Union, many of whom were killed in the Civil War.[3]

This morning I attended a very moving virtual worship service at Minneapolis’ Westminster Presbyterian Church. The Scripture for the day was Samuel 3: 1-10 and Luke 2: 41-52 as the foundation for the sermon “Learning to Listen/Listening to Learn” by Senior Pastor, Rev. Tim Hart-Andersen. [4]

A new moving voice in the service was Joe Davis, a poet and Artist in Residence at the church, who previously said, “ I am a poet because I struggle desperately to express my soul’s deepest longings each and everyday—yet I never shy away from the fight.” He “grew up in a non-denominational Pentecostal church in North Dakota, where his parents were active members. In college at Minot State, Joe began to go on spring break service trips with the campus ministry. The campus pastor, who happened to be Lutheran, encouraged Joe to become a peer minister. Her mentoring helped him grow in faith and as a leader, and the ELCA [Evangelical Lutheran Church in America] became an important part of his life.” Now he “feels ‘a little bit of both ‘Lutheran and Pentecostal’ while also being “a strong believer in ecumenicalism—the unity of Christians across denominational lines.”[5]

This worship service was previewed early last week at a ZOOM conversation about aging in the Covid pandemic. Rev. Hart-Andersen said that spirituality should be addressed holistically and intentionally by focusing on your heart (writing hand-written letters or emails to your family and friends); your soul (developing and following a discipline for praying); your mind (reading); your body (exercising); and your love (serving, praying, advocating, writing and volunteering). Afterwards I told Tim that the activities for the “mind” should be reading, reflecting, studying or researching, writing about these activities and then sharing the writing with others. This is what I strive to do on most subjects of posts to this blog.

On today’s beautiful sunny 70-degree afternoon in Minneapolis my wife and I went for an enjoyable walk up Kenwood Parkway from the Walker Art Center Garden to the north end of Kenwood Park and returning on Mt. Curve Avenue to the western side of the Walker to Kenwood Parkway.

Tomorrow morning I will be having coffee with three friends from our condo building in our entertainment center, a practice I started several weeks ago. We have enjoyable conversations and, I think, all of us welcome this opportunity to have social interaction in this age of social distancing.

Another item on my ongoing agenda is preparing for the October 12th meeting of my men’s book group from Westminster Church. I will be leading the upcoming meeting to discuss the novel, “The Last Trial,” by Scott Turow. Most of our meetings this year have been by ZOOM although last month five of us met in the outdoor patio of one of our members; the other five members could not make the meeting. Reading and discussing books with other men is another important way to have needed social interaction.

These are the thoughts of one day of a human being’s living through the pandemic in Minneapolis, Minnesota, USA. I am managing to stay healthy in mind and body despite worries about the coronavirus and the headaches caused by Trump and fears over his supporters somehow damaging or disrupting the November 3rd election.

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[1] Covid in the U.S.: Latest Map and Case Count, N.Y.Times (Sept. 20, 2020); World Health Organization, WHO Coronavirus Disease (COVID-19) Dashboard.

[2] Bream, Minnesota pianist Nachito Herrera on surviving COVID-19: ‘This it the worst thing I’ve had in 54 years of my life, StarTribune (Sept.5, 2020); Nachito Herrera Concert at Minneapolis’ Westminster Presbyterian Church, dwkcommentaries.com (Jan. 7, 2015); Minneapolis’ Westminster Presbyterian Church’s Connections with Cuba, dwkcommentaries.com (∆an. 13, 2015)

[3] Van Ooy & Smith, Trump’s praise of Robert E. Lee gets pushback from Minnesotans proud of state’s role at Gettysburg, StarTribune (Sept. 19, 2020).

[4] The video of this service is  available in the church’s Archive of services, and a future blog post will examine details of the service.

[5] Joe Davis Poet, joedavispoetry.com; Parent, Poet in Residence at Redeemer Lutheran Church, zionbuffalo.org (March 2014).

Developments in George Floyd Criminal Cases

As previously discussed, the September 11 hearing in the four George Floyd criminal cases had many arguments and disclosures by the parties and judge’s decisions. [1]  Here is a summary of filings in the cases since that hearing.

State’s Response to Chauvin Dismissal Motion [2]

On September 18 the State responded to Derek Chauvin’s motion to dismiss the criminal complaint for alleged lack of probable cause. The State’s 42-page brief had a detailed statement of facts regarding the May 25th police encounter with Mr. Floyd and discussion of the relevant law. Here is its summary of the State’s position:

  • “There is probable cause for each charged offense in the complaint. On May 25, 2020, Chauvin, Kueng, and Lane pinned Floyd to the ground face-down after he was suspected of using a counterfeit $20 bill to purchase a pack of cigarettes. Chauvin pressed his knee into Floyd’s neck and held Floyd’s handcuffed left hand behind his back. Kueng knelt on Floyd’s back and likewise pinned Floyd’s handcuffed arms behind his back. Lane restrained Floyd’s legs with his hands and knees. And Thao—who saw what the other officers were doing and heard Floyd’s cries for help—encouraged the others to continue pinning Floyd down, pushed back a group of concerned bystanders, and prevented them from intervening.”
  • “In the first five minutes Floyd was on the ground, he told the officers at least twenty times that he could not breathe. He told them nearly ten times that he was dying. And then he fell silent. He stopped moving. He stopped breathing. And the officers could not find a pulse. As Floyd lost consciousness, a crowd of bystanders pleaded with the officers. They told the officers they were killing Floyd. They screamed that Floyd had stopped moving. They alerted the officers that Floyd had stopped breathing. And they begged the officers to take Floyd’s pulse. Nonetheless, the officers continued to pin him to the ground—with Chauvin kneeling on Floyd’s neck, Kueng on Floyd’s back, Lane on Floyd’s legs, and Thao standing watch to prevent the bystanders on the sidewalk from approaching the other officers and Floyd.”
  • “All told, the officers held Floyd in that position for approximately nine minutes—about five times longer than the national anthem, and four times longer than President Lincoln’s Gettysburg Address. During that time, Chauvin continued to kneel on Floyd’s neck for about four minutes after Lane told the other officers that Floyd was “passing out,” and for two and a half minutes after Kueng said Floyd did not have a pulse. Indeed, he continued to press his knee into Floyd’s neck for a full minute after emergency medical personnel arrived on the scene, and even while emergency personnel tried to check Floyd’s pulse.”

“Probable cause is manifest. The facts here “would lead a person of ordinary care and prudence to hold an honest and strong suspicion” that Chauvin committed second-degree murder, third-degree murder, and second-degree manslaughter. State v. Ortiz, 626 N.W.2d 445, 449 (Minn. App. 2001). The evidence is more than sufficient to establish probable cause for each offense. This Court should therefore deny Chauvin’s motion to dismiss.”

State’s Motion for Reconsideration of  Disqualification of Hennepin County Attorneys [3]

On September 14, the State asserted that “there is no rule which requires the inclusion of a non-attorney witness when [an attorney is] speaking to an experienced and routine government witness, and ABA guidance specifically contemplates a prosecutor meeting with such a witness one-on-one, and undoubtedly four-on-one, without triggering ethical or practical concerns. . . . [T]he meeting [of] these four[HCAO] prosecutors was not any sort of “sloppy” act or unethical shortcutting. Rather, it was a reasoned decision made by conscientious public servants.”

Moreover, “the State does not plan for any of these attorneys to be a trial advocate in this case, and defense counsel has not actually identified a credible scenario under which any of them would be disqualified from serving as such, e.g. by becoming a “necessary witness” at trial, which is the defense’s burden. With that in mind, it is unwarranted to further restrict the State still more: by prohibiting the State from even consulting with these experienced prosecutors (and thus preventing Mr. Freeman and Mr. LeFevour from supervising these matters). Such a broad removal of Mr. Freeman, Mr. LeFevour, Ms. Sweasy, and Mr. Lofton unduly prejudices the State.” In addition, two of the four attorneys have “recused themselves from the case and have had no further involvement in the case.”

In addition to its citation of relevant rules and cases, the State submitted an affidavit of William J. Wernz, who is described by the Minnesota State Bar Association as the author of Minnesota Legal Ethics: A Treatise and as “one of the nation’s foremost authorities on legal ethics.”  After reviewing the relevant materials, Mr. Wernz stated under oath, “in my opinion the interviews of the Hennepin County Medical Examiner by the HCAO did not furnish any basis for conclusion that they violated Rule 3.7, nor that any of them who acted as advocate at trial would violate Rule 3.7 by so doing.”

State’s Additional Discovery Disclosures [4]

On September 16, the State disclosed that it had provided defense counsel with the body worn camera video of Mr. Floyd’s May 6, 2019 incident with the Minneapolis police. On the same date, the State disclosed its having provided other materials.

Kueng’s Request for Preemptory Challenges [5]

On September 15, Defendant J. Alexander Kueng requested that if the four cases are consolidated for trial, each of the defendants should be granted 10 preemptory challenges (but at least five such challenges) of potential jurors.

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[1] See the following posts and comments in dwk commentaries: Agenda for the 9/11/20 Hearing in the George Floyd Criminal Cases (Sept. 2, 2020); Preview of 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 10, 2020); Comment: Rule 404 Evidence Motions: More Details  (Sept. 10, 2020); More Details on 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 11, 2020);Results of 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 12, 2020).

[2] Chauvin Moves To Dismiss Criminal Complaint, dwkcommentaries (Aug. 28, 2020); State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause, State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept.18, 2020); State’s Exhibits for Opposition to Chauvin’s Dismissal Motion ,State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept.18, 2020).

[3] State’s Notice of Motion and Motion for Reconsideration of Order Prohibiting Participation of Michael O. Freeman and Others, State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept.14, 2020); Affidavit of William J. Wernz, State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept.14, 2020).

[4] Letter, Matthew Frank to Judge Cahill, State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept.16, 2020); Supplemental Prosecution Disclosures Pursuant to Rule 9.01, Subd. 1, State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept. 16, 2020).

[5] Defendant’s Position on Peremptory Challenges, State v. Kueng, File No. 27-CR-20-12953 (Sept. 15, 2020).