Tag: Tao Thao

Resetting State Criminal Trial Date for Kueng and Thao for Killing of George Floyd

On June 6, Hennepin County District Court Judge Peter Cahill, in a well-reasoned opinion, postponed the date for the criminal cases against J. Peter Kueng and Tao Thao  to January 5, 2023.[1]

On June 21, Judge Cahill heard arguments on two motions for changing the date for the start of the trial.

Prosecution’s Motion[2]

The prosecution’s one-page letter merely stated, “On behalf of the family of George Floyd, the state requests a speedy trial as provided in the Victim’s Rights Act, Minn. Stat. sec. 611A.033(a), and Minn. R. Crim. P. 11.09(b).”

Kueng’s Motion[3]

Kueng’s motion requested a continuance to a date after April 3, 2023. For background, his motion stated, “On June 17, 2022 the State entered a speedy trial demand. . . . The State’s demand for a speedy trial followed a teleconference . . . [on June 27] wherein the instant continuance request was discussed [and] Counsel for Mr. Thao has informed the Court that he has no objection to this continuance request.” In addition, “On March 9, 2022 and May 27, 2022 the Court conducted chambers conferences with the parties to discuss plea negotiations, trial scheduling and other matters. During each of those meetings Counsel for Mr. Kueng informed the Court and parties that he was unavailable for trial from January through March 2023. Counsel’s unavailability is due a scheduling conflict of a personal nature.”

The Court’s Decision[4]

After hearing from the attorneys, Judge Cahill apologized to Thomas Plunkett, the attorney for Kueng, that he had forgotten that the attorney previously had told the Judge that he had a personal commitment ‘etched in stone’ in January and that he’d rather give up his law license than miss it. Judge Cahill then announced that he was changing the date for commencement of the trial to October 24, 2022 although he was still weighing the need for publicity from the federal trial and former officer Thomas Lane’s May guilty plea to aiding and abetting manslaughter to die down.

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[1] State Criminal Trial for Thao and Kueng Postponed to January 2023, dwkcommentaries.com (June. 6, 2022); Walsh, State requests speedier start for state trial of ex-officers Thao and Kueng in George Floyd killing, StarTribune (June 20, 2022).

[2] Letter, Frank (Assist. Att. Gen.) to Judge Cahill, June 17, 2022).

[3] Defendant Kueng’s Notice and Motion for Continuance, State v. Kueng, Henn. Cty. Dist. Ct. File No. 27-CR-20-12953 (June 19, 2022).

[4] Olson, Judge agrees to move trial of two former Minneapolis officers to October in George Floyd’s death, StarTribune (June 21, 2022).

State Criminal Trial for Thao and Kueng Postponed to January 2023

On June 6, Hennepin County District Court Judge Peter Cahill granted motions byTou Thao and J. Alexander Kueng to postpone their criminal trials with a new date of January 5 for their commencement. The court also denied the defendants’ motion to change venue and the motion of the Media Coalition to reconsider the court’s previous barring of audio and video coverage of this trial.[1]

The Reasons for Changing the Trial Date

 The Minnesota Supreme Court has recognized that “continuance of a trial date has been recognized as an effective tool to diminish the effect of prejudicial pretrial publicity.” Here, the defendants have cited two such events.

  • First, on May 18, 2022 (less than four week prior to the scheduled start of the trial co-defendant Thomas Lane pled guilty to aiding and abetting second-degree manslaughter. [2]
  • Second, on February 24, 2022, Thao, Kueng and Lane were found guilty by a federal jury of violating George Floyd’s civil rights “based largely on the same evidence as will be introduced in Defendants Thao’s and Kueng’s joint state trial.”[3]

“These two recent events and the publicity surrounding them are significant in they . . could make it difficult for jurors to presume Thao and Kueng innocent of the State charges.” A postponement of the trial for nearly seven months should “diminish the impact of this publicity on the Defendants’ right and ability to receive a fair trial from an impartial and unbiased jury.”

The Reasons for Denial of Change of Venue

Although there has been “saturation news coverage in the Twin Cities in print and broadcast media” of the George Floyd killing and subsequent court proceedings, the same is true “throughout the entire State of Minnesota—not to mention nationally.”

Moreover, “a prospective juror’s exposure to pretrial publicity does not alone create a reasonable likelihood of an unfair trial. . . . Instead, the issue is whether a prospective juror can set aside his or her impressions or opinions based on pretrial publicity, be fair and impartial, and render an impartial verdict.” In addition, this court has taken extensive measures in the earlier Chauvin trial and is now implementing those same measures for the trial of Thao and Kueng.

In addition, postponing the trial to January 2023 will put more than two and one-half years since the killing of Mr. Floyd; more than 20 months since the jury verdict in the Chauvin case; [4] almost eleven months since the jury verdict against Thao and Kueng in the federal civil rights trial; and probably four to six months since their upcoming sentencing in that federal trial.

Finally, this court has continued to impose “appropriate steps to ensure the selection of an impartial jury” and Hennepin County is “the most populous and diverse county in the state.”

The Reasons for Denial of Audio/Video Coverage

“With the reduction in the number of defendants, . . . [the trial courtroom] can now be configured, with the relaxed COVID protocols, to accommodate at least eighteen seats for the public . . . [which] does not amount to a courtroom closure.”

However, “if there is a significant rule change in place by [the commencement of this trial next January], the court would reconsider allowing audio and video coverage.”

Another Consideration

Another consideration favoring the postponement of the trial not mentioned by Judge Cahill was providing additional time for these two defendants, especially after their federal sentencing, to consider attempting to negotiate an agreement with the prosecution for their pleading guilty to the state charges.

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[1] Walsh, State Trial for fired Minneapolis officers Thao, Kueng delayed until January, Star Tribune (June 6, 2022); Order and Memorandum Opinion Concerning Trial, State v. Thao & Kueng, Court Files Nos. 27-CR-20-12949 & 27-Cr-20-12953, Hennepin County District Court (June 6, 2022).

[2] Ex-Officer Thomas Lane Pleads Guilty to State Charge of Aiding and Abetting Manslaughter of George Floyd, dwkcommentaries.com (May 18, 2022). Comment: More Details on Lane’s Guilty Plea, dwkcommentaries.com (May 19, 2022).

[3]  Federal Criminal Trial for Killing George Floyd: Jury Deliberations and Verdict, dwkcommentaries.com (Feb. 25, 2022).

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

 

Federal Criminal Cases Against Ex-Minneapolis Cops for George Floyd Death: Initial Proceedings

On May 6, 2021, the U.S. Department of Justice filed in the U.S. District Court in Minneapolis an indictment over the killing of George Floyd on May 25, 2020 against four former Minneapolis policemen (Derek Chauvin, Tou Thao, J. Alexander Kueng and Thomas Kiernan Lane).

On the same date the Department filed a separate Indictment against Derek Chauvin over his alleged use  of unreasonable force against a juvenile in 2017.

The Indictment Over the Death of George Floyd [1]

The Indictment against all four former Minneapolis policemen asserted the following three counts:

  • Count 1 charged Derek Chauvin, “while acting under color of law . . . willfully deprived George Floyd of the right, secured and protected by the Constitution and laws of the United States, to be free from an unreasonable seizure, which includes the right to be free from the use of unreasonable force by a police officer.”
  • Count 2 charged Tou Thao and J. Alexander Kueng, “acting under color of law, willfully deprived George Floyd of the right, secured by the Constitution and laws of the United States, to be free from an unreasonable seizure . . . [by failing] to intervene to stop . . . Chauvin’s use of unreasonable force.”
  • Count 3 charged all four defendants, “while acting under color of law, willfully deprived George Floyd of the right, secured and protected by the Constitution and laws of the United States, not to be deprived of liberty without due process of law, which includes an arrestee’s right to be free from a police officer’s deliberate indifference to his serious medical needs [when they saw ] George Floyd lying on the ground in clear need of medical care, and willfully failed to aid Floyd, thereby acting with deliberate indifference to a substantial risk of harm to Floyd.”

Initial Hearing of Thao, Kueng and Lane [2]

On May 7, three of the defendants (Thao, Kueng and Lane), who were free on bail in the state criminal case, made their first appearance before U.S. District Judge Paul Magnuson, who issued three separate Orders Setting Conditions of Release that included a $25,000 appearance bond and submission to, and cooperation with, a Pretrial Services interview.

Separate Indictment of Chauvin [3]

This Indictment charged Chauvin with two counts for allegedly willfully depriving a 14-year-old Minneapolis boy of his civil rights during a 2017 arrest. Chauvin allegedly pinned the teenager down and struck him on the head with his flashlight, then grabbed him by the throat and hit him again. The second count alleged that Chauvin held his knee on the neck and upper back of the juvenile while he was lying prone, handcuffed and unresisting.

Initial Hearing for Chauvin [4]

On June 1, Chauvin appeared remotely from a state prison before U.S. Magistrate Becky Thomson. She appointed Erik Nelson, who represented Chauvin in the state trial resulting in his conviction, to act as Chauvin’s defense  attorney. In response to a question whether Chauvin knew he had a right to a federal detention hearing, he said,  “I do know. [but] probably in light of my current circumstances, I believe that would be a moot point.” He then waived his right to a detention hearing and was remanded to federal custody in the state prison

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[1] Federal Court Charges Against Ex-Minneapolis Policemen Over George Floyd’s Killing, dwkcommentaries.com (May 7, 2021); Indictment, U.S. v. Chauvin, Thao, Kueng and Lane, U.S. District Court, District of Minnesota (CR. 21-108 PAM/TNL (May 6, 2021;

[2] Order Setting Conditions of Release, U.S. v. Thao, U.S. District Court, District of Minnesota (CR. 21-108-002 PAM/TNL (May 6, 2021); Order Setting Conditions of Release, U.S. v. Kueng,, U.S. District Court, District of Minnesota (CR. 21-108-003 PAM/TNL (May 6, 2021); Order Setting Conditions of Release, U.S. v. Lane, U.S. District Court, District of Minnesota (CR. 21-108-004 PAM/TNL (May 6, 2021).

[3] Indictment, U.S. v. Chauvin, U.S. District Court, District of Minnesota (CR. 21-109 WMW/HB, May 6, 2021).

[4] Mannix, Derek Chauvin appears before federal judge on civil rights charges, StarTribune (June 1, 2021); Forliti (AP), Chauvin makes appearance on federal charges in Floyd’s death, Wash. Post (June 1, 2021).

 

Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases

On November 5, the Hennepin County District Court issued five significant orders regarding the joint criminal trial of Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thao over the killing of George Floyd. These orders (1) granted the State’s motion for a joint trial of the four defendants; (2) preliminarily denied the defendants’ motions for change of venue; (3) provided for  juror anonymity and sequestration; (4) allowed audio and video coverage of the trial; and (5) narrowed its previous order regarding four members of the Hennepin County Attorney’s Office’s participation in the cases.[1]

On November 16, various motions and briefs were submitted objecting to the recent orders for a joint trial and allowing audio and video coverage of the trial as well as the pending motions for allowance of evidence of prior incidents of the four defendants and of Mr. Floyd. The most significant of these papers, in this blogger’s judgment, was Thomas Lane’s motion for reconsideration of the order for a joint trial of the four defendants, which, therefore, will be discussed first.

Lane’s Motion To Reconsider Joinder for Trial[2]

Lane argued that the order for joinder is premature as it does not consider the prejudice that will be caused by admission of evidence of prior incidents involving the other three defendants, none of which involved Lane.

Most significantly, Lane asserted that his  defense will be antagonistic to Chauvin in that he will be “pointing the finger” at Chauvin and that if Lane had known of Chauvin’s prior incidents, Lane would have acted differently. (Emphasis added.) (This is believed to be the first time that any of the defendants has pointed the finger at Chauvin, the principal actor in the death of Floyd.)

Moreover, said Lane’s attorney, the Court’s opinion regarding aiding and abetting liability was erroneous since it was inconsistent with a 2014 opinion of the U.S. Supreme Court, which, among other things, said such liability requires the defendant to have “advance knowledge that a crime is being committed.” (Emphasis added.)[3]

Finally, according to Lane’s attorney, a recently disclosed FBI report about its July 8th interview of Hennepin County Medical Examiner, Dr. Andrew Baker, contains significant points helpful to Lane and the other defendants.. Here are this blogger’s extracts of that report with emphasis on the points helpful to the defendants.

  • Baker’s office’s press release about its examination of Floyd’s body apparently mentioned ”cardiopulmonary arrest,” which “for a lay person would be the stopping of the heart and lungs. Other factors that contributed to Floyd’s cardiopulmonary arrest included hypertension, the presence of fentanyl and methamphetamine, as well as arteriosclerotic heart disease.”(P. 038777) (Emphasis added.)
  • “The term ‘complicating’ in the case title was a medical term meaning occurring after, during, or as a result of.” (P. 03877)
  • “Baker defined 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 involved in Floyd’s interaction with police prior to being on the groun” (Pp. 038777-78.) (Emphasis added.)
  • “There was no evidence that Floyd’s airway was literally blocked shut. When viewing the body camera footage, the pressure did not appear to be directly over Floyd’s airway. Floyd would have been unable to speak if pressure was directly over his airway.” (P. 03778.) (Emphasis added.)
  • “Officer Chauvin’s positioning on Floyd’s body does not fit anatomically with occluding Floyd’s airway.” (P. 038778.) (Emphasis added.)
  • “There was no anatomic evidence of injury to Floyd’s neck but that does not rule out that pressure was applied by Chauvin.” (P. 038778.) (Emphasis added.)
  • “The absence of petechiae weighs against strangulation.” (P. 038778.) (Emphasis added.)
  • “Baker noted that that Floyd had no injury to . . .[his lower buttocks or upper end of Floyd’s thigh which were being held by Kueng].” (P. 038778) (Emphasis added.)
  • Baker noted that there was no relation to Floyd’s cause of death by Lane’s position [on Floyd’s feet].” (P. 038778.) (Emphasis added.)
  • “The struggle between officers and Floyd weighed into Baker’s opinion because physical exertion increases heart rate, releases adrenaline, and increases respiratory rate as well as cardiac demand. All of these things increased the likelihood of a bad outcome.” (P. 038778.)
  • “Baker had no opinion on when Floyd became critical or near death.” (P. 038780.) (Emphasis added.)
  • “Baker did not believe that the prone position was any more dangerous than other positions based on an article or journal he had read. “ (P. 038780.) (Emphasis added.)
  • “Baker could not provide an answer on a ‘but for’ cause [of death]. (P. 038781.) (Emphasis added.)
  • “Absent suspicious circumstances, if Floyd had been found dead in his bed with the level of fentanyl in his blood that was present for this autopsy, it may be classified aa fentanyl fatality due to the level of fentanyl.” (P. 039781.) (Emphasis added.)
  • “When a death was labeled a homicide, it was not a legal ruling being made. The label was classified as such for public health reasons.” (P. 0388782.) (Emphasis added.)

Parties’ Battle Over Evidence of Defendants’ Prior Incidents[4]

 The State previously had argued for admission of evidence of eight separate incidents involving Chauvin’s actions in the course of his duties as a Minneapolis Police Officer. On November 16 the State submitted a supplemental argument in support of such evidence in light of its obtaining the body worn camera videos for one of those incidents that are relevant to show modus operandi, intent and lack of mistake and rebut any defense of reasonable use of force and that their probative value outweighs any potential unfair prejudice.

Lane’s objection to such evidence was just discussed.

In addition,  Chauvin’s attorney argued that these incidents are inadmissible to show his intent in the Floyd case or his alleged knowledge of the need to move Floyd from the prone position or a common scheme or plan or modus operandi and that evidence of such incidents is cumulative and unfairly prejudicial.

State’s Objection to Evidence of  Floyd’s Prior Incident with Minneapolis Police[5]

All Defendants intend to offer evidence of George Floyd’s May 6, 2019, incident with the Minneapolis Police Department even though the Court at the September 11, 2020, hearing held that such evidence was inadmissible. The State said the Court’s prior decision was correct and that the defendants intend to offer this evidence at trial was for the improper purpose of attacking Floyd’s character and suggesting he had a propensity to commit crimes or should be punished for his prior actions; that the prior incident does not show Floyd’s common scheme or plan in the incident that led to his death; that his state of mind in the prior incident is irrelevant; that the unfair prejudice of evidence of that prior incident far outweighs its probative value and that the defendants’ other arguments for such evidence are unpersuasive.

State’s Objection to Audio and Video Trial Coverage[6]

The State asked the Court for reconsideration of its order for audio and video coverage of the trial. The motion provided no reasons for that motion other than its previous objection to such coverage under Minnesota Rule of Criminal Procedure 4.02(d) and a brief to be filed on or before November 30.

A StarTribune editorial, however, supported this court order. It said, “It is in the best interest of trial participants and the public for this high-profile trial to be as accessible as possible. . . . [Judge] Cahill’s ruling is well-reasoned and fair.”

Reactions

An important reason for the Court’s November 5th order for a joint trial of the four defendants was there was no indication at that stage of the proceedings “that any of the Defendants is likely to be prejudiced by joinder because their defenses are not antagonistic but instead are mutually supportive.” Now, however, Defendant Lane has stated that his  defense will be antagonistic to Chauvin in that Lane will be “pointing the finger” at Chauvin and that if Lane had known of Chauvin’s prior incidents, Lane would have acted differently. This latest statement, therefore, is a serious challenge to the wisdom of a joint trial.

In addition, Lane’s disclosure of the FBI memorandum of its interview of the Hennepin County Medical Examiner, assuming it accurately reflects what the Examiner said, provides boosters for the defense and problems for the prosecution.

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[1] Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing, dwkcommentaries.com (Nov. 5, 2020).

[2]  Defendant’s [Lane’s] Objection to the State’s Spreigl Notice and Motion to Reconsider the Court’s Order for Joinder, State v. Lane, Court File No. 27-CR-20-12951 (Nov. 16, 2020); Exhibit A [FBI Memorandum], Lane Objection to Spreigl and Motion to Reconsider Joinder Order,  State v. Lane, Court File No. 27-CR-20-12951 (Nov. 16, 2020).

[3]  This case was Rosemond v. United States, 572 U.S. 64 (2014), which requires close analysis.

[4]  State’s Supplemental Memorandum of Law in Support of Other Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020); Defendant’s [Chauvin’s] Objection to State’s Proposed Introduction of Spreigl Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020); Defendant’s [Kueng’s]Objection to the State’s 404(b) Evidence, State v. Kueng, Court File No. 27-CR-20-12953 Nov. 16, 2020); Defendant’s [Thao’s] Memorandum in Opposition to State’s Motion for Spreigl Evidence Against Mr. Thao, State v. Thao, Court File No. 27-CR-20-12949 Nov. 16, 2020); Defendant’s [Lane’s] Objection to the State’s Spreigl Notice and Motion to Reconsider the Court’s Order for Joinder, State v. Lane, Court File No. 27-CR-20-12951 (Nov. 16, 2020); Jany, Seeking to show pattern of excessive force by Chauvin, prosecutors cite incident with 14-year-old boy who couldn’t breathe, StarTribune (Nov. 17, 2020);Bailey, Former Minneapolis police officer charged in George Floyd’s death seeks to bar evidence of past neck and body restraints, Wash. Post (Nov. 17, 2020).

[5] State’s Response Opposing Defendants’ Motions To Admit Spreigl Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020).

[6] State’s Motion for Reconsideration, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020) State asks judge to reconsider permission for audio, video coverage of officers’ trial in George Floyd Killing, StarTribune (Nov. 16, 2020); Editorial, A victory for courtroom access in George Floyd case, StarTribune (Nov. 17, 2020).

Post-Hearing Developments in George Floyd Criminal Cases

As previously discussed, on October 12, the attorney for Defendant Thomas Lane filed a motion to include in trial evidence a video of Mr. Floyd’s incident on May 6, 2019, with three other Minneapolis police officers. This caused the Prosecution that same day to seek an order for a temporary protective order on future filings in the cases that the court denied in a hearing on October 15.[1]

On October 16, the other three defendants—Derek Chauvin, Tou Thao and J. Alexander Kueng—made similar applications for use of evidence regarding Mr. Floyd’s May 6, 2019 incident with Minneapolis police. Also on the 16th the court denied Kueng’s related motions to file video exhibits for his motion to change venue.[2]

As discussed in a prior post, immediately after the October 15th hearing, Thomas C. Plunkett, the attorney for Defendant J. Alexander Kueng, and Earl Gray, the attorney for Defendant Thomas Lane, were harassed by protesters.

The next day Mr. Plunkett filed a motion for leave to file video evidence of the protesters conduct after the hearing. It said, “once again, protestors engaged in criminal conduct placing at least one attorney and the general public at risk. This conduct was captured on video. The video depicts a protestor committing acts in violation of Minn. Stat. 609.749 Subd. 3 (4) – Harassment, Stalking. A separate video depicts a protestor being arrested and deputies finding a gun in the course of the arrest.” [3]

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[1] See these posts to dwkcommentaries.com: Important Prosecution Filings in George Floyd Criminal Cases (Oct. 14, 2020); Court Denies Prosecution’s Motion for Temporary Protective Order in George Floyd Criminal Cases (Oct. 15, 2020).

[2] Defendant’s Notice of Motion and Motion To Admit Floyd’s May 6, 2019 Incident, State v. Chauvin, Court File No. 27-CR-20-12946 (Hennepin County District Court Oct. 16, 2020); Motion for Leave To Supplement the Spreigl Motion with an Additional Motion with an Additional Video Exhibit, State v.Thao, Court File No. 27-CR-20-12949 (Hennepin County District Court Oct. 16, 2020); Defendant’s Motion and Memorandum of Law to Allow Video Exhibits, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County District Court Oct. 16, 2020); Order, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County District Court Oct. 16, 2020).

[3] Court Denies Prosecution’s Motion for Temporary Protective Order in George Floyd Criminal Cases, dwkcommentaries.com (Oct. 15, 2020); Motion and Memorandum of Law To Allow Video Exhibits, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County District Court Oct. 16, 2020).

Prosecution’s Supplemental Argument for Enhanced Sentences for Defendants in George Floyd Criminal Cases

On October 12, the State of Minnesota submitted additional arguments for enhanced sentences for the four former policemen in the event they are found guilty of murder and/or manslaughter in the killing of George Floyd. [1]

Background for This Submission[2]

On August 28, the State submitted its Notice of Intent To Seek an Upward Sentencing Departure in all four of these criminal cases. It alleged that Floyd was particularly vulnerable and was treated with particular cruelty by Chauvin, that Chauvin abused his position of authority, committed the crime as part of a group of three or more offenders who actively participated in the crime and in the presence of multiple children. (Similar assertions were made in notices in the other three criminal cases.)

This notice in the Chauvin case was submitted in accordance with the U.S. Supreme Court’s decision in Blakely v. Washington, 542 U.S. 2996 (2004), which held that the defendant’s Sixth Amendment right to a jury trial can be violated any time the court imposes a sentence greater than that called for in the guidelines, even when the sentence imposed is below the maximum punishment permitted by the legislature.

This submission by the prosecution was argued at the September 11, 2020, hearing before Hennepin County District Court Judge Peter Cahill. Assistant Attorney General Matthew Frank argued that Floyd was particularly vulnerable because he was handcuffed and pinned to the ground. Judge Cahill expressed some skepticism of this point by asking whether what happens during an encounter qualifies for this purpose.

In its Notice of Intent To Offer Other Evidence of 9/10/20, the State said it intended to offer evidence of Chauvin’s eight prior instances of use of excessive force, including use of neck and upper body restraints.  In four of those, Chauvin allegedly used them “beyond the point when such force was needed under the circumstance,” an indication of his pattern, including his restraint of Floyd.

Details of Supplemental Submission

 The supplemental submission answered “yes” to two questions posed by the Court at that hearing.

  1. “Whether the particular vulnerability of the victim justifies an upward sentencing departure when the defendants are responsible for creating the victim’s vulnerability?”

Under Minnesota Sentencing Guidelines 2.D.3.b(1), “When a defendant commits a crime against a victim who was “particularly vulnerable due to . . . reduced physical or mental capacity, and the offender knew or should have known of this vulnerability,” an upward sentencing departure is permissible.”

That standard is met in the current cases because the defendants “handcuffed Floyd’s arms behind his back, pressed him chest-down into the pavement, and rendered him unconscious. As a result, Floyd was “particularly vulnerable” when Defendants committed the crime, and Defendants knew or should have known as much.”

Moreover, the Minnesota Court of Appeals in six cited cases has “upheld the application of this enhancement where the victim became “particularly vulnerable” as a result of a defendant’s actions.”

  1. “Whether a defendant’s abuse of a 27-CR-20-12646 Filed in District Court State of Minnesota 10/12/2020 3:09 PM 2 position of authority supports an upward sentencing departure even if there is not a pre-existing relationship of trust between the defendant and the victim?”

The Minnesota Supreme Court and Court of Appeals in cited cases have upheld upward sentencing departure where there are “power imbalances” even when there is no pre-existing relationship between the perpetrator and the victim “so long as the defendant holds either a’a position of trust or [a] position of authority.”

Here, “as police officers in full uniform, Defendants had a ‘defined relationship’ of authority over Floyd, and were ‘in a position to dominate and control’ him. . . . That ‘position of control” ’allowed them to handcuff and restrain Floyd, and therefore to ‘manipulate the circumstances and commit the crime.’”

Reaction to This Submission

Earl Gray, Lane’s defense attorney, said the request for an upward sentencing departure is an attempt to poison the potential pool of jurors. “They first have to get a conviction,” he said. The other defense counsel had no comments or could not be reached.

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[1] Supplemental Brief in Support of Notice of Intent To Seek an Upward Sentencing Departure, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County District Court Oct. 12, 2020); Olson, Prosecutors want stiff sentences for ex-cops charged in George Floyd’s killing, StarTribune (Oct. 13, 2020).

[2] State’s Notice of Intent To Seek an Upward Sentencing Departure, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020), State’s Notice of Intent To Seek an Upward Sentencing Departure, State v. Lane, Court File No. 27-CR-20-12951 (Hennepin County District Court Aug. 28, 2020); State’s Notice of Intent To Seek an Upward Sentencing Departure, State v. Kueng, Court File No. 27-CR-20-12953(Hennepin County District Court Aug. 28, 2020); State’s Notice of Intent To Seek an Upward Sentencing Departure, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County District Court Aug. 28, 2020).  See also Preview of the 9/11/20 Hearing in George Floyd Criminal Cases, dwkcommentaries.com (Sept. 10, 2020); Results of 9/11/20 Hearing in George Floyd Criminal Cases, dwkcommentaries.com (Sept. 12, 2020).

 

Chauvin Out of Prison on Bail 

On October 4, Chauvin posted a $1 million bond and was released from Minnesota state prison on charges of murder and manslaughter of George Floyd on May 25th in Minneapolis. The conditions of his release include “that he remain law abiding, that he not have any contact with Floyd’s family, that he not work in law enforcement or security, that he surrender any firearms and licenses to carry, that he remain in Minnesota under court supervision, and that he sign a waiver of extradition upon his release.”  His three co-defendants—Thomas Lane, J. Alexander Kueng and Tao Thou—already had  posted bond (in smaller amounts) and had been released from jail. [1]

As reported in a comment to the earlier post about Chauvin and his wife being charged with Minnesota tax crimes, on September 8, Chauvin appeared remotely from state prison at a hearing on the state tax evasion charges before Judge Sheridan Hawley, Washington County District Court, Stillwater, Minnesota.[2]

The Judge ordered that if Chauvin were to post bail and be released from state prison on his charges of murder and manslaughter of George Floyd, he would not be required to post monetary bail on the tax evasion charges, but he would have to comply with standard conditions, including attending all future court dates and remain law-abiding. The Judge also set the next hearing in this case for October 30.

Protestors[3]

That same night about 300 people marched peacefully from the site of Floyd’s killing (East 38th Street and Chicago Avenue) a few blocks north towards downtown and then back. At one point they stopped to chant, “No justice, no peace.”

Later, 34 people who had veered away from the earlier protest were arrested for unlawful assembly near the Fifth Precinct police headquarters at 3101 Nicollet Av. by officers from the state Department of Natural Resources and the State Patrol, the Minnesota Department of Public Safety disclosed Thursday morning.

These law enforcement officers had been activated out of an abundance of caution by Minnesota Governor Tim Walz at the request of Minneapolis Mayor Jacob Frey. But there were no large or violent protests.

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[1]  Xiong, Chauvin posts $1 million bond and is released pending trial for murder in the killing of George Floyd, StarTribune (Oct. 7, 2020); Bailey, Former Minneapolis police officer Derek Chauvin released on bond as he faces trial in George Floyd’s death, Wash. Post (Oct. 4 , 2020); Bogel-Burroughs, Derek Chauvin, Ex-Officer Charged in George Floyd’s Death, Released on Bail, N.Y. Times (Oct. 4, 2020).

[2] Olson, Chauvin appears in court on tax evasion charges, StarTribune (Sept. 9, 2020): Comment: Chauvin Appears in State Court on Tax Evasion Charges (Oct. 4, 2020) to Chauvin and Wife Now Charged with Minnesota Tax Crimes, dwkcommentaries.com (July 22, 2020).

[3] Xiong, Derek Chauvin posts $1 million bond and is released pending trial for murder in the killing of George Floyd, StarTribune (Oct. 8, 2020); Simons, Dozens of protestors arrested during faceoff with law enforcement in Minneapolis, StarTribune (Oct. 8, 2020); Skiuzacek, Walz activates Minnesota National Guard to help keep peace in Twin Cities, 5 Eyewitness News (Oct. 7, 2020).

 

Additional Developments in George Floyd Criminal Cases

Developments in the four criminal cases over the killing of George Floyd through September 18, have been discussed or cited in a previous post.[1] Here are the further developments in the cases over the last two weeks.

Change Venue To Protect Defendants’ Safety [2]

The most significant development has been J. Alexander Kueng’s attorney’s October 1st argument that the case should be moved from Hennepin County to another county in order to protect the defendants’ safety. The following was the asserted factual basis for this supplemental argument:

  • For the September 11th hearing, “no recognizable plan was in place in advance of the hearing to assure the safe and orderly entry of CoDefendants or Co-Counsel into the courthouse.”
  • “ Chauvin, who is in custody, was subjected to a degree of humiliation by being paraded in public dressed in jail cloths and body armor.”
  • “Attorneys and Defendants were harassed upon arrival and departure from the courthouse.”
  • Attorneys “ Paule and Mr. Thao were followed for several blocks by jeering protestors when departing. . . .[Attorneys] Gray, Plunkett, and their respective clients were harassed. Gray and Lane were physically assaulted.”
  • “A privately owned vehicle sustained nearly $2,000.00 worth of damage from the violent rioters.”
  • “A rioter also used video from the event to dox [slang: publishing the private personal information of another person] one of the parties.”
  • https://en.wikipedia.org/wiki/Doxing
  • “Before leaving the courthouse, counsel conferred with court security to get advice on how they should safely leave the area. Court security suggested they wait until after The Floyd family and their attorney had addressed the crowd. This advice did not make sense, and, if followed, caused greater concern for attorney and client safety. Counsel rightfully believed that these speeches would incite the crowd making their departure far more risky and tempt rioters to storm the courthouse.”

Under Minnesota Rules of Criminal Procedure, the defense attorney argued, “a change of venue may be granted in the interests of justice,” and under cited Minnesota Supreme Court cases, “Where there is reason to believe that it will be impossible to obtain a fair and impartial trial in the county selected because of local prejudices, feelings, and opinions, the ends of justice require that a change of venue be granted.”

If the trial were held in Hennepin County, said the defense attorney, “the jury will be influenced by the screaming and yelling of the crowds that could be heard from the first floor during the motions hearing. . . . Witnesses will be intimidated as they have to walk the gauntlet before they testify. Defense witnesses will be reluctant to testify if providing exculpatory evidence will subject them to rioting, assaults and dox attacks.”

“The defendants have to reasonably question whether the chants and crowds will impact the decisions of the judge and jury in their case as the people that will decide their case pass through the rioters during weeks of trial.”

“The defendants and their lawyers cannot safely enter and exit the courthouse. Parties were physically assaulted after a simple motions hearing. During trial, tensions are going to be even higher. The lawyers will be carrying notebooks, computers, law books and other materials to help defend their clients, which will make it more difficult for them to avoid the angry crowds.”

“As demonstrated by the September 11th hearing, the Court simply cannot control the rioters and protesters who have taken to the streets of Minneapolis. This Court must grant a change of venue to a county where the defendants can obtain a fair trial free from the riots and crowds that will occur if he is tried in Hennepin County.”

Presumably the other three defendants will support this argument and the State will attempt to counter it, presumably be identifying security measures that will be imposed.

Prior Acts of Chauvin, Kueng and Thao [3]

Another significant development was the State’s notice of intent to offer evidence of eight other instances of Chauvin’s alleged use of force to prove his intent, knowledge;  common scheme or plan and modus operandi; one instance of Kueng’s use of force to prove knowledge and intent; and nine instance of Thao’s conduct to prove expediency, dishonesty and refusal to respond to training.

The State also said it intends prior to trial to file a separate memorandum in support of the admission of this evidence and that it “may offer evidence of other acts, instances of specific conduct, and prior convictions” of the defendants.”

The defendants have not yet responded to this notice, except in their additional arguments against joinder of the cases for trial, as discussed below.

Additional Arguments Against Joinder of Cases for Trial [4]

As previously discussed, the court at the September 11 hearing heard arguments for and against the State’s motion to join all four cases for one trial. Now two of the defendants have submitted additional opposing briefs.

Chauvin’s attorney argued that the State’s intent to offer evidence of eight prior acts of Chauvin and of prior acts of two of the other defendants (Kueng and Thao) demonstrates that “a majority of the evidence will not be admissible against all defendants” and, therefore, contradicting the State’s argument for joinder. In addition, Chauvin would be prejudiced by the other defendants attempts to blame Chauvin.

Kueng’s attorney argues that the State’s intent to use evidence of prior bad acts by Chauvin and Thao would prejudice Kueng because such evidence could be used against Kueng and he could use the evidence in a manner in which the State would be prohibited.

Thomas Lane Case  [5]

Lane’s attorney noticed his intent to offer evidence of Lane’s good character in a January 2020 encounter with a homeless Black individual in a wheelchair.

Alexander Kueng Case [6]

In addition to his previously mentioned additional argument for change of venue, Kueng has filed an appeal to the Minnesota Court of Appeals from the district court’s denial of his request for public funding of fees for services other than counsel.

 Press Articles about Defendants [7]

There also have been press articles about the defendants.

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[1] See Developments in George Floyd Criminal Cases, dwkcommentaries.com (Sept. 19, 2020).

[2] Supplemental Memorandum Notice of Motion and Motion To Change Venue, State v. Kueng, Court File No.: 27-CR-20-12933 (Hennepin County Dist. Ct. Oct. 1, 2020); Olson, Crowd swarms former Minneapolis police officers with shouts of ‘Murderer!’, StarTribune (Sept. 11, 2020); Forliti, Lawyer: Unruly crowd warrants venue change in Floyd case, StarTribune (Oct. 1, 2020); Xiong, Protesters assaulted former officer charged in George Floyd’s killing and defense attorney, court filing alleges, StarTribune (Oct. 2, 2020). 

[3] State’s Amended Notice of Intent To Offer Other Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Sept. 25, 2020).

[4] Defendant’s [Kueng’s] Memorandum—Effect of the State’s Spreigl Notice of Joinder, State v. Kueng, Court File No.: 27-CR-20-12953 (Hennepin County District Court Sept.25, 2020); [Chauvin’s} Memorandum of Law Regarding the Effect of the State’s Spreigl Notice of Its Joinder Motion, State v. Chauvin, Court File No.: 27-CR-20-12646 (Hennepin County District Court Sept.25, 2020).

[5] Defendant Thomas Lane Notice of Intent To Offer Character Evidence, State v.Lane, Court File No.: 27-CR-20-12951 (Hennepin County District Court Sept. 30, 2020).

[6] Appellate Notice of Case Filing, State v. Kueng, Court File No.: 27-CR-20-12953 (Hennepin County District Court Sept. 22, 2020 27-CR-20-12953 (Hennepin County District Court Sept. 22, 2020); Appellate Notice of Court Filing, State V. Kueng, File #27-CR-20-12953 (Minn. Ct. App. Sept. 22, 2020); Request for Trial Court Record-Appellate Court, State v. Kueng, File A20-1225 (Minn. Ct. App. (Sept. 24, 2020); Appellate Exhibit List, State v. Kueg, Court File No.: 27-CR-20-12953 (Hennepin County District Court Sept.25, 2020).

[7] Chanen, Trouble signs showed up early in the career of fired Minneapolis police officer Tou Thau. StarTribune (Sept. 26, 2020); Xiong, [Kueng’s] Former officer’s failure to stop the deadly restraint of George Floyd leaves friends perplexed, StarTribune, StarTribune (Sept. 13, 2020).

The Four George Floyd Criminal Cases Should Remain in Minneapolis

Hennepin County District Court Judge Peter Cahill in his Minneapolis chambers is considering whether the four criminal cases over the killing of George Floyd  should remain in Minneapolis for further proceedings and trial or be transferred to another Minnesota state court. This is the key issue in the judge’s deciding the pending motions for change of venue submitted by the four defendants—Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thao—and vigorously opposed by the Minnesota Attorney General’s office.[1]

Outside the court a strong argument for the cases remaining in Minneapolis–where Floyd’s killing occurred, where the defendants worked and where the witnesses reside– has been put forth by a former U.S. Attorney for the District of Minnesota and now a visiting professor at the University of St. Thomas School of Law (both based in Minneapolis), Rachel K. Paulose.[2] Here are the highlights of her argument.

“Trial venue is not a minor procedural issue. It matters because the people’s voice matters. The arguments by those charged in Floyd’s death could be raised by any high-profile defendant seeking to evade local oversight in any trial court in the United States. If venue is changed routinely in police brutality cases, there is a grave danger that citizens will lack the power to hold police forces accountable when a rogue officer fails to behave lawfully.”

“Why are the defendants so desperate to run away from the Twin Cities? The defendants claim “an impartial jury cannot be seated for the trial” in Minneapolis because of the saturated media coverage and ensuing protests. This claim is misguided for at least three reasons.”

“First, bystanders filmed Floyd’s death in a video that went viral on a global scale. No city in Minnesota, the United States and perhaps the entire Internet-connected world would be immune from the Floyd defendants’ concerns of a jury pool irretrievably biased by excessive media coverage.”

“Interestingly, [counsel for the four ex-officers concede] . . . the Minnesota Supreme Court has held that a change of venue is not warranted in a case where ‘no evidence had been provided to indicate that any part of Minnesota had been shielded from publicity.’ Faced with case law that requires the opposite of what they seek, the Floyd defendants are left to argue the rules must be bent for them: ‘The legal standard needs to be altered.’”

“Second, while protesting the nonstop media coverage, the attorney for Derek Chauvin, the officer who pressed his knee into Floyd’s neck, objects to the gag order in this case, asserting it “prevents any mitigating or exculpatory information from entering the public conversation.” What is that mitigating information? Apparently, based on further filings, Chauvin and a co-defendant want to raise claims of Floyd’s purported drug use, violence and criminal record. It cannot be that the defendants may have it both ways, arguing that they have suffered from too much (adverse) publicity and inadequate (positive) publicity.”

“Third, and perhaps most significant, the jury demographic pool changes dramatically outside the Twin Cities metro area, in a way that is likely helpful to the defendants and harmful to Floyd. The Census Bureau estimates that Hennepin County, where Floyd died, is 14 percent Black and 74 percent White. Hennepin County is the most diverse county in the state, and it would be nearly impossible to seat an all-White jury in Minneapolis. By contrast, the three rural counties where one of the defendants has suggested in his motion to change venue have Black populations of less than 1 percent to 4 percent.”

“Jury pools that do not share the same community dynamics of Floyd’s home deny the people of Minneapolis their interest in achieving justice in this case. Minneapolis streets burned in response to Floyd’s death. Minneapolis businesses, many minority-owned, suffered the brunt of the unrest that resulted when politicians pulled back from protecting the city. The people of Minneapolis are still dealing with the consequences for law enforcement and their own safety.”

“Sadly, police brutality is not unique to Minneapolis. Nor are the demographic patterns in metropolitan vs. rural areas unique to Minnesota. The risks posed by changing venues in police brutality cases are painfully evident. These cases are hard for prosecutors to win in any event, and a loss carries with it the threat of violent reaction by an angry community that believes justice has been denied. In 1992, Los Angeles exploded in anger after widespread suspicion that a venue change from Los Angeles to Simi Valley, Calif., led to the acquittal of four police officers charged with beating Rodney King. The Bill of Rights applies to “We the People of the United States” and not just to criminal defendants. The framers of the Constitution are unlikely to have foreseen the complexities of our digital age, but they trusted the American people to control every branch of their government, including the judiciary through the Sixth Amendment jury trial guarantee.”

“As a woman of color, I was heartbroken to see the images of Floyd’s dying moments. As a former U.S. attorney and civil servant privileged to work with many honorable law enforcement officers, I am concerned by the prospect of police facing the wrath of angry protesters because of the actions of four men in Minneapolis. It is because I support law enforcement and uphold the Constitution that I am convinced that those who abuse their authority must answer for their actions to their own constituents. The trial must remain in Minneapolis.”

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[1] See these posts to dwkcommentaries.com: Preview of the 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 10, 2020); Results of 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 12, 2020).

[2] Paulose, The Trial of George Floyd’s alleged killers must stay in Minneapolis, Wash. Post (Sept. 21, 2020).