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.

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[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.

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

[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.

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

[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).

 

 

 

 

Chauvin Moves To Dismiss Criminal Complaint 

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

Dismissal of Count I–Second Degree Unintentional Murder

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

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

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

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

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

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

Dismissal of Count III—Culpable Negligence Manslaughter

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

 

Pandemic Journal (# 27): More Reflections on the Pandemic

The July 26 New York Times proclaims the statistics of the pandemic’s toll: [1]

  • For the world, there have been 16,034,200 cases in nearly every country with 644,925 deaths while the number of new cases is growing faster than ever with a daily average of more than 200,000.
  • The U.S. (including four territories), with at least 4,190,400 total cases has the most of any country in the world while recoding 146,314 deaths. “Case numbers are surging throughout most of the United States, including in many states that were among the first to reopen. Because the number of people hospitalized and the percentage of people testing positive also are rising in many of those places, the case spike cannot be solely explained by increased testing. Still, coronavirus deaths remain well below their peak levels. And as some places reimpose restrictions, others continue to reopen their economies.”
  • The State of Minnesota has had at least 50,331 cases and 1,611 deaths. “Over the past week, there have been an average of 689 cases per day, an increase of 22 percent from the average two weeks earlier.”

The pandemic has been having and continues to have a major negative impact on the world and U.S. economies. For the week ending July 25, the initial U.S. jobless claims rose to 1.4 million. This increase was the first in nearly four months, “a sign the jobs recovery could be faltering.” Now the $600/week jobless aid is nearing an end. Evictions loom for millions who cannot afford their rent while foreclosures loom for homeowners who cannot pay their mortgages. And the U.S. federal government recorded a budget deficit of $ 3 Trillion for the 12 months ending this June.[2]

These calamities have had a disproportionate impact on our African-American brothers and sisters. For example, in Minnesota 48% of Black workers have filed for unemployment compensation versus 22% of white workers. “One of the big reasons for the unemployment disparity in Minnesota is that Black Minnesotans are more likely to be employed at hotels, restaurants, retail, health and other service-related industries that have seen the most job losses because of stay-at-home orders and other pandemic-induced slowdowns.” In addition, “the pandemic also has disproportionately hurt American Indian, Latino and Asian American employment in the state. Women, younger workers and those with less education have also taken a bigger hit.”[3]

In the midst of these immense problems and challenges, President Trump continues to lie and demonstrate his incompetence. As a result, the rest of the world is shocked and dismayed.[4] I worry that Trump will attempt in some fashion to try to steal the election.[5]

Although I am retired with good health and financial savings and thus not personally affected (so far) by these woes, I worry about the impact of these crises on my sons and grandchildren. More generally I am worried about the negative impact of these crises on people and countries all over the world and the U.S. in particular that will linger for all their lives as I believe happened to those who lived through the Great Depression of the 1930’s.

“Investing in the Future” was the sermon today at Westminster Presbyterian Church by Associate Pastor Sarah Brouwer. It drew upon Jeremiah 19: 1-14, where the Prophet sends a letter to the Jewish people who have been taken into exile in Babylon after the Babylonians had destroyed the Temple in Jerusalem. God tells the exiles, “Build houses and live in them; plant gardens and eat what they produce. Take wives and have sons and daughters; take wives for your sons, and give your daughters in marriage, that they may bear sons and daughters; multiply there, and do not decrease. But seek the welfare of the city where I have sent you into exile, and pray to the Lord on its behalf, for in its welfare you will find your welfare.”

This passage of Jeremiah continues. “Only when Babylon’s seventy years are completed will [the Lord] visit you, and I will fulfill to you my promise and bring you back to [Jerusalem]. For surely I know the plans I have for you, says the Lord, plans for your welfare and not for harm, to give you a future with hope. Then when you call upon me and come and pray to me, I will hear you. When you search for me, you will find me; if you seek me with all your heart, I will let you find me, says the Lord, and I will restore your fortunes and gather you from all the nations and all the places where I have driven you, says the Lord., and I will bring you back to the place from which I sent you [Jerusalem] into exile.”

According to Rev. Brouwer, this passage reminds us today to shed our expertise and judgment, relearn old ways and accept marginal status in the current pandemic in order later to flourish.

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[1] Coronavirus Map: Tracking the Global Outbreak, N.Y.Times (July 26, 2020, 9.21 a.m. EDT); Coronavirus in the U.S.: Latest Map and Case Count, N.Y.Times (July 26,2020, 9.21 a.m. EDT); Minnesota Coronavirus Map and Case Count, N.Y.Times (July 26,2020, 9:21 a.m. EDT); Hyatt, Minnesota COVID-19 cases up by 871; 3 more deaths reported, StarTribune (July 26, 2020). See also List of Posts to dwkcommentaries–Topical: Pandemic Journal.

[2] Davidson, Coronavirus Spending Pushes U.S. Budget Deficit to $ 3 Trillion for 12 Months Through June, W.S.J. (July 13, 2020); Kiernan, Evictions Loom for Millions Who Can’t Afford Rent, W.S.J. (July 16, 2020); Chaney & Mackrael, Jobs Recovery Shows Signs of Slowing as Coronavirus Surges, W.S.J. (July 17, 2020);Benoit, What Banks Tell Us About Business: Everybody Is Struggling, W.S.J. (July 18, 2020); Morath & Chen, As $600-a-week Jobless Aid Nears End, Congress Faces a Quandary, W.S.J. (July 19, 2020).

[3] Kumar, Half of Black workers in Minnesota have lost work during pandemic, StarTribune (July 18, 2020).

[4] E.g., Achenbach, Wan, Brulliard & Janes, The crisis that shocked the world: America’s response to the coronavirus, Wash. Post (July 19, 2020).

[5] E..g., Sonmez, Trump declines to say whether he will accept November election results, Wash. Post (July 19, 2020). See also, Election Officials’ Dread About This Year’s U.S. Election, dwkcommentaries.com (July 11, 2020).