Reconsidering Third-Degree Murder Charges Against Other Ex-Policemen in George Floyd Killing 

On June 30, 2021, the Minnesota Court of Appeals reversed  Judge Cahill’s denial of the State’s motion to add a third-degree murder aiding and abetting charge against former MPD officers, J. Alexander Kueng, Thomas Lane and Tou Thao. Their trial is now scheduled for March 2022.[1]

Before looking at this Court of Appeals decision, we will examine a summary of the complicated background for this issue.

Background for Appellate Decision

“Murder in the Third Degree: in the Minnesota Statutes (section 609.195) is defined as “Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.”

The original superseding criminal complaint of June 3, 2020, against Derek Chauvin included a third-degree murder charge while not so charging the other three former officers of aiding and abetting that charge in their original complaints of June 3.[2]

On August 28, 2020, Chauvin moved to dismiss the complaint, including the third-degree murder charge. On October 21, 2020, Judge Cahill granted Chauvin’s motion to dismiss the third-degree murder charge while denying the balance of the motion. According to the Judge, such a charge can be sustained only when “the defendant’s actions . . . were not specifically directed at the particular person whose death occurred.” [3]

On February 4, 2021, the State moved for leave to reinstate the third-degree charges against the former officers. The basis for this motion was the Court of Appeals’ February 4th 2-1 decision upholding a third-degree murder charge against Mohammed Noor for the 2017 killing of an Australian woman in south Minneapolis.[4]

On February 11, Judge Cahill denied this motion to add the third-degree murder charges. According to the Judge, the majority opinion in its recent Noor case “is not persuasive in this Court’s view because it departs from the Minnesota Supreme Court’s long adherence to the no-particular person requirement embedded in the depraved mind element [of the crime].” In addition, said Judge Cahill, the dissent in the Noor case was correct.[5]

On February 22, the State appealed that decision to the Court of Appeals. On March 1 the Court of Appeals heard arguments on that appeal, and on March 5 that court reversed Judge Cahill’s decision. As a result, on March 11, Judge Cahill reinstituted the third-degree murder charge against Chauvin. The Judge said he was “duty bound” to accept the appellate court’s ruling and interpretation of the statute.[6]

Court of Appeals June 30th Decision[7]

The Court of Appeals on June 30, 2021, said that its previous decision on the third-degree murder charge in the Chauvin case requires Judge Cahill to reverse his previous denial of the charge of aiding and abetting such a crime by these three former officers and to hear additional arguments from the parties.

Judge Cahill will be duty-bound to follow this decision and order.

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[1] Xiong, Court of Appeals ruling puts third-degree murder back into play in George Floyd killing, StarTribune (July 1, 2021); Williams, Minnesota appeals court clears way for third-degree murder charge against officers in George Floyd death, The Hill (July 1, 2021).

[2] The Criminal Complaint Against Derek Chauvin Over the Death of George Floyd, dwkcommentaries.com (June 12, 2020); The Criminal Complaints Against the Other Three Policemen Involved in George Floyd’s Death, dwkcommentaries.com (June 14, 2020).

[3] Chauvin Moves To Dismiss Criminal Complaint, dwkcommentareis.com (Sept. 9, 2020); Court Sustains Most Charges in George Floyd Criminal Cases, dwkcommentaries.com (Oct. 23, 2020).

[4] Prosecution and Chauvin Dispute Adding Third-Degree Murder Charges in George Floyd Criminal Case, dwkcommentaries.com (Feb. 10, 2021); Court Denies Third-Degree Murder Charges for George Floyd Killing, dwkcommentaries.com (Feb. 12, 2021).

[5] Ibid.

[6] Comment: State Appeals Dismissal of Third-Degree Murder Charges in George Floyd Case, dwkcommentaries.com (Feb. 23, 2021); Appellate Hearing on Third-Degree Murder Charge Against Derek Chauvin, dwkcommentaries.com (Mar. 1, 2021); Court of Appeals Reverses District Court’s Refusal To Follow Precedent on Third-Degree Murder Charge Against Derek Chauvin, dwkcommentaries.com (Mar. 5, 2021); Derek Chauvin Trial: Week One, dwkcommentaries.com (Mar. 15, 2021)Thomas Lan

[7] See n.1 supra.

 

Derek Chauvin Trial: Arguments About Sentencing of Chauvin

On June 2, the State and Derek Chauvin submitted vastly different briefs about the appropriate sentence for his conviction for second- and third-degree murder and second-degree manslaughter. The State argued for 30 years imprisonment while Chauvin asked for time already served and probation. [1]

The State’s Argument for 30 Year Sentence  [2]

The State’s argument for a 30-year sentence was based upon the trial court’s already having decided that there are “beyond a reasonable doubt” four separate aggravating factors in  Chauvin’s] killing of George Floyd: () Chauvin “abused a position of trust and authority” as a police officer; (2) he “treated George Floyd “with particular cruelty;” (3) Chauvin “acted in concert with three other  .. . [officers], who all actively participated in the creimes;” and (4) children were present when Floyd was pinned to the pavement at 38th and Chicago for more than 9 minutes until he died. (Pp. 1-2.)

In reliance upon Minnesota Supreme Court decisions, the State argued that “each of these factors supplies a “substantial and compelling reason’ for imposing an aggravated sentence” and that “where one or more aggravating factors are present, the district court can impose a sentence up to ‘double the upper limit of the presumptive range.’” This is especially true in this case when the court has concluded that Chauvin’s abuse of his position of trust and authority was “egregious and that multiple aspects of his conduct were ‘particularly cruel.” (Pp. 1-2.)

Here, the “presumptive sentencing range . . . [for Chauvin’s] conviction for . . . second-degree unintentional murder, [which is the  most serious of the crimes for which Chauvin was convicted] is 128 to 180 months. The State therefore respectfully request that the court sentence . . . [Chauvin] to 360 months, or 30 years, in prison.” (P. 3.)

In addition, the State took no position “at this time” on the recommendation in the pre-sentence investigation report that Chauvin pay restitution in an amount to be determined by the Court, but reserved the right to address restitution at the sentencing hearing or thereafter. (P. 21, footnote 7.).

Chauvin’s Argument for Mitigated Departure  and Sentencing [3]

First, Chauvin argued for a discretionary downward departure and a sentence for a “stringent probationary term.” This departure purportedly was justified by the following alleged facts (pp. 4-10):

  • Chauvin was 44 years old at the time of his encounter with George Floyd and his having led “a hard-working, law-abiding life . . .[his not having experienced] a legal issue,  [his still having] the ability to positively affect his family and his community” and the likelihood as a former police officer of his  “becoming a target in prison” by other inmates.
  • “Chauvin has a criminal history of zero [with] no previous convictions for felony, gross misdemeanor, or misdemeanor offenses.” Moreover, “prior to his conviction, [he] complied with all the terms of the Court’s release orders and made every court appearance.”
  • ”Chauvin has been very respectful of the judicial process, the Court, and the State;” upon learning that a complaint and warrant had been issued for him, he turned himself into custody; [after being released on bail, he] remained out-of-custody, attended all court appearances, was never unruly, was properly dressed for court, and was deferential to the Court under all circumstances.” He thereby “established that he is particularly amenable to probation.”
  • Before “this incident” occurred, Chauvin was an average man with a loving family and close friends, and he still has such close relationships. “He has the support of his mother, stepfather, father, stepmother, and sister [and his] ex-wife, her family and his former stepchildren.”
  • Chauvin has demonstrated that he is amenable to probation and will be an asset to the community.

Second, these same alleged facts also support Chauvin’s alternative request for a  durational  downward departure for his sentence as do the following additional factors (Pp. 10-12):

  • “Chauvin was unaware that he was even committing a crime.[ Instead,] in his mind, he was simply performing his lawful duty in assisting other officers in the arrest of George Floyd.” Chauvin’s “offense is best described as an error made in good faith reliance [on] his experience as a police officer and the training he had received—not intentional commission of an illegal act.”
  • Chauvin did not use “a dangerous weapon” and “did not intend to cause George Floyd’s death.”

Third, Chauvin argued that an aggravated upward departure was unwarranted for the following reasons (pp. 12-16):

  • “There is no evidence that the assault perpetrated by Mr. Chauvin against Mr. Floyd involved a gratuitous infliction of pain or cruelty not usually associated with the commission of such an offense.” This assault “occurred in the course of a very short time, involved no threats or taunting, such as putting a gun to his head and pulling the trigger. . . and ended when EMS finally responded to officers’’ calls.”
  • The officers twice called for medical assistance and Chauvin remained on scene until it arrived.
  • “The defense is aware of no caselaw in Minnesota . . in which a peace officer’s position has been considered an aggravating factor for an upward departure in sentencing.”
  • None of the codefendants has been convicted of a crime related to the crimes of which Chauvin has been convicted.
  • “The defense is unaware of any case in Minnesota in which the presence of children factor has been considered in a bystander-witness situation where the children, themselves, were not placed in danger.”

Conclusion

 The State’s argument for a 30-year sentence was persuasive, given the court’s prior determination that there were four factors favoring upward sentencing departure.

Chauvin’s argument, on the other hand, was ridiculous in claiming the right to probation or downward departure in the length of any sentenced imprisonment, given the trial record and his conviction of all three counts by a jury.  Here are some additional reasons for that reaction.

First, Chauvin did not testify at trial, and there were no purported evidentiary bases asserted for his sentencing argument.

Second, many people who were interviewed about Chauvin by the New York Times said Chauvin “did his job as if he were playing a role—a tough Dirty Harry on the lookout for bad guys … [and] seemed to operate at an emotional distance from those around him. [He] was a quiet and rigid workaholic with poor people skills and a tendency to overreact—with intoxicated people especially .” [4]

Third, Chauvin ‘s record as a MPD policeman for 19 years includes 22 complaints that many people believe should have raised alarm in the MPD and triggered a general review.[5]

Fourth, In the state criminal case, in which the jury concluded that Chauvin was guilty of all three charges—second- and third-degree murder and second-degree manslaughter–the prosecution requested court permission for admitting into evidence eight of the previous MPD complaints against Chauvin for his actions as a policeman, and the court granted permission for evidence of one such incident on June 25, 2017 and provisional permission for another on August 25, 2015 if there was “clear and convincing evidence that Chauvin was present when a medical professional made certain remarks.” [6]

Fifth, the previously mentioned June 25, 2017 MPD complaint against Chauvin recently has been asserted in a separate federal grand jury indictment of Chauvin in the Minneapolis federal court. It alleges that in this instance Chauvin deprived a 14-year-old boy of his civil rights by pinning him down, striking him on the head with Chauvin’s flashlight and grabbing him by the throat and hitting him again.[7]

Sixth, another troublesome Chauvin incident that took place only three weeks before the killing of George Floyd was his takedown of another Black man (Adrian Drakeford) in a manner very similar to the takedown of Floyd that was videotaped by the man’s brother. Drakeford was not involved in any suspected crime and was released without charges and without any complaint against Chauvin and his colleagues (J. Alexander Kueng and Thomas Lane). [8]

Seventh, the Floyd family’s complaint in a federal-court civil lawsuit for money damages against the City of Minneapolis, Chauvin (and his three colleagues) alleged that Chauvin was the subject of 17 citizen complaints from 2006 to 2015, that Chauvin as a policeman participated in the shooting and killing of three individuals and in 2005 engaged in a reckless police chase resulting in the deaths of three individuals. On March 12, 2021, in the midst of the state court trial of Chauvin, the City of Minneapolis announced its agreement to settle this case with a payment of $27 million to the Floyd family.[9]

Eighth, only a few days after Mr. Floyd’s death, Chauvin and his then-wife reached an agreement for divorce that would transfer the bulk of his assets to her and thereby presumably protect those assets from any attempt by the Floyd family to seize them to collect a future money judgment against Chauvin.  However, a Minnesota state court found that divorce agreement to be fraudulent and that the court subsequently subsequently approved that agreement only after there were major changes. This interpretation of the proposed divorce agreement is also supported by Chauvin’s claim in his sentencing brief that he “is still supported by his ex-wife, her family, and his former stepchildren.”([10]

Ninth, Chauvin and his-then wife in July 2020 were charged with criminal tax fraud by the State of Minnesota for failure to report over $460,000 of Minnesota income since 2014 resulting in illegal failure to pay over $20,000 of Minnesota taxes. [11]

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[1] Xiong, Chauvin attorney argues for probation instead of prison time for George Floyd murder, StarTribune (June 2, 2021); Forliti (AP), State seeks 30 years for Chauvin; defense want time served, Wash. Post (June 2, 2021).

[2] State’s Memorandum of Law on Sentencing, State v. Chauvin, Hennepin County District Court File No.: 27-CR-20-12646 (June 2, 2021); Derek Chauvin Trial: Court Finds Aggravating Factors for Sentencing, dwkcommentaries.com (May 12, 2021).

[3] Defendant’s Motions for Mitigated Departure and Sentencing Memorandum, State v. Chauvin, Hennepin County District Court File No.: 27-CR-20-12646 (June 2, 2021).

[4]  See these posts to dwkcommentaries.com: Ex-Cop Derek Chauvin: An Enigma in Blue (Aug. 9, 2020); Derek Chauvin’s Policing Background (July 20, 2021); Comment: Journalist’s Report on Derek Chauvin’s Prior Instances of Alleged Abuses (Feb. 2, 2021); https://dwkcommentaries.com/2020/07/20/derek-chauvins-policing-background/Comment: Video of Another Chauvin-Led Takedown of Black Man (Feb. 9, 2021).

[5]  See n. 4.

[6] See these posts to dwkcommentaries.com: Evidentiary Rulings and Request for Delay in Chauvin’s Expert Report in George Floyd Criminal Cases (Jan. 26, 2021); Comment: Journalist’s Report on Derek Chauvin’s Prior Incidents of Alleged Abuses (Feb. 2, 2021).

[7] Federal Court Charges Against Ex-Minneapolis Policemen Over George Floyd’s Killing, dwkcommentaries.com (May 7, 2021).

[8]  Comment: Video of Another Chauvin-Led Takedown of Black Man, dwkcommentaries.com (Feb. 3, 2021).

[9]  See thees posts to dwkcommentaries.com: George Floyd Family’s Complaint Against the Four Ex-Police Officers Over His Death, (July 17, 2020); Derek Chauvin Trial: Week One, (Mar. 15, 2021); Derek Chauvin Trial: Week Two, (Mar. 21, 2021).

[10] See these posts to dwkcommentaries.com: Derek Chauvin’s Wife’s Divorce Petition Raises Questions, (July 8, 2020);  State Court Rejects Chauvin Divorce Settlement,(Nov. 20, 2020); Complications in Derek Chauvin’s Divorce Case,(January 20, 2021); Comment: Court Approves Redacted Chauvin Divorce Agreement, (Feb. 4, 2021)

[11]  Chauvin and Wife Now Charged with Minnesota Tax Crimes, dwkcommentaries.com (July 22, 2020).

 

 

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).

 

Developments in State’s Prosecution of Ex-Officers for Aiding and abetting the Killing of George Floyd   

As noted in a prior post, on May 12, attorneys for Tou Thao filed a motion for sanctions for alleged prosecutorial misconduct, and on May 20, the State submitted a blistering opposition to that motion. Also on May 20, the Minnesota Court of Appeals heard arguments in the State’s appeal of the trial court’s denial of its motion to add a charge of aiding and abetting third-degree murder against the other three ex-officers.

Thao’s  Motion [1]

The basis for this motion was the State’s allegedly (a) having Dr. Roger Mitchell, a former Chief Medical Examiner for Washington, D.C., pressure Dr. Andrew Baker, the Hennepin County Medical Examiner, to change his preliminary findings of “no physical findings [supporting] a diagnosis of traumatic asphyxia or strangulation” to the final findings of “neck compression;” and (b) after Chauvin’s chief medical expert (Dr. Fowler) testified that in his opinion the cause of death was undetermined, Dr. Mitchell wrote to Maryland officials to investigate Dr. Fowler’s qualifications and such an investigation was commenced by the Maryland Attorney General.

On that basis the motion requested an order (a) dismissing the criminal charges against Thao; (b) barring seven attorneys (Including Attorney General Ellison and Neal Katyal) from participating in any trial against Thao; (c) asserting complaints about these attorneys to their professional responsibility authorities; and (d) requiring the State to report Dr. Mitchell to the appropriate medical boards.

On the same day of the motion, the State submitted a short letter to the Court from Minnesota Assistant Attorney General Matthew Frank saying that this motion asserted, “Bizarre allegations . . . [that] are false and wrong.”

A more detailed and fierce response from the State was filed on May 20. It asserted that this “motion is another bad-faith attempt by Defendant Thao to debase the State, disqualify members of the prosecution team, and divert attention from his role in the death of George Floyd on May 25, 2020. . . .These preposterous accusations are simply false, and . . .Thao does not even offer a shred of evidence to support this baseless conspiracy theory. If anything, the very facts . . . Thao offers [the sworn testimony of Dr. Baker]disprove the accusations he makes.”

“The State also cannot, and did not, control or influence the response to Dr. Fowler’s public testimony from the medical community at large . . . . [Over 400] medical professionals found Dr. Fowler’s testimony to be so contrary to accepted medical standards that they publicly expressed concern about the credibility of Dr. Fowler’s work. . . .[This] is evidence against, not for, the wild accusations of defense counsel.”

Thao’s attorney “has launched a frivolous motion practice campaign to unfairly prejudice the prosecution in the public domain, replete with gratuitous and unfounded personal attacks on the prosecution. To make false accusations of coercion against the State n an attempt to tarnish professional reputation, taint the jury pool, and advance Defendant’s interest in the public eye is beyond the pale.”

Therefore, argued the State, “the court should summarily deny ]this motion} . . .and remind defense counsel of his obligation to refrain from frivolous motion practice.”

Appellate Argument Over Aiding and Abetting Third-Degree Murder [2]

On May 20, the Minnesota Court of Appeals heard arguments in a pending appeal by the State over whether or not the three co-defendants (Thomas Lane, J. Alexander Kueng and Tou Thao) could be charged with aiding and abetting third-degree murder of George Floyd.

Neal Katyal for the State argued that this appellate court already had decided that a charge of third-degree murder was viable against Derek Chauvin, for which he was convicted in April, and that appellate decision “should settle the [issue for the other three defendants].

For the three co-defendants attorney Deborah Ellis argued that it was legally impossible for them to be charged with aiding and abetting third-degree murder because that is an unintentional act and relies on a defendant’s reckless state of mine, but aiding and abetting must be intentional. This, she argued, required the principal actor and the accomplice to be of the same mindset.

One of the three appellate judges, Judge Renee Worke, said this was a “novel” argument while Attorney Katyal said this argument was just wrong. A defendant and aids a crime of recklessness if he intentionally assist in the reckless act, knowing it is reckless. Moreover, the State could just charge the three co-defendants as principal actors.

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[1] See Developments in State Criminal Cases for George Floyd Killing, dwkcommentaries.com (May 13, 2021); State’s Response to Defendant Thao’s Motion for Sanctions Regarding Alleged Witness Coercion, State v. Thao, Hennepin County District Court, Court File No. 27-CR-20-12949 (May 20, 2021); Olson, Prosecutors deny defense claim that medical examiner’s opinion in George Floyd’s death was coerced, StarTribune (May 20, 2021).

[2] Forlit (AP), Appeals court hears case of 3 ex-cops charged in Floyd death, StarTribune (May 20, 2021).

Developments in State Criminal Cases for George Floyd Killing

 There have been four recent developments in the state criminal cases over the killing of George Floyd: (a) the state trial court’s delaying the criminal trial of the other three defendants (Thomas Lane, J. Alexander Kueng and Tou Thao); (b) conducting a hearing on Lane’s motion for discovery of certain use-of-force reports by the Minneapolis Police Department; (c) conducting a hearing on motions for sanctions for alleged leak of alleged Chauvin offer to plead guilty; and (d) Thao’s motion for sanctions for alleged illegal pressure on Hennepin County Medical Examiner.

Delay of Trial [1]

At the May 13 pretrial hearing in the three cases, Judge Peter Cahill announced that the trial would be delayed from August 25, 2021 to March 7, 2022. The Judge gave three reasons for this postponement: (a) provide time for the Judge to deal with pending issues in the cases; (b) provide time for the recently filed federal criminal case against all four ex-officers to proceed since it carries higher potential penalties; [2] and (c) provide time for the publicity about the trial and conviction of Derek Chauvin to diminish.

The three defendants favored the postponement. The State did not .

Nekima Levy Armstrong, a lawyer and prominent civil rights activist in Minneapolis, did not approve of this postponement. She said, “I think we they should have just moved forward. I don’t think it helps our community in a positive way to have to wait about another year.”

Lane’s Motion for Discovery [3]

Previously Lane had requested the State to disclose all use-of-force reports for the last 30 years in which a Minneapolis police officer intervened verbally or physically against another officer’s use of force and the State objected. Lane’s attorney believes there are no such reports and thus discredit the aiding and abetting charges against Lane (and the other two ex-officers )for not intervening to stop Chauvin’s restraint of George Floyd.

Matthew Frank for the State argued that the request was overly broad and should be denied. ts brief stated, that Lane had “not established how the intentions and actions of individual police officers in past years in other incidents would be admissible to impeach testimony about the objectively reasonable officer standard. His failure to address the factual or legal standards necessary to this motion highlight that this is not a serious discovery motion, but simply an attempt to usurp the Court’s time and resources so counsel for Defendant Lane can obtain a public forum to argue his theory of the case. His motion should be summarily denied.”

The Judge said he would take the motion under advisement and later issue an order on the motion.

Three Co-Defendants Motion for Sanctions [4]

The three co-defendants (Lane, Kueng and Thao) have alleged that the prosecution leaked to the New York Times an alleged offer by Chauvin to plead guilty to third -degree murder only three days after the killing of Mr. Floyd.[5]

At the May 13th  hearing, this subject was raised when the three co-defendants asked for the prosecutors to testify under oath or submit affidavits that they did not leak this information, and Judge Cahill revealed that shortly after publication of the Times article he had asked the prosecutors to do just that, but only one such affidavit was provided (by Matthew Frank) while Attorney General Ellison submitted a letter (not under oath) that the prosecution team was not the source.

Judge Cahill tentatively scheduled an August hearing on this matter, and one of the co-defendants’ attorneys said he would subpoena prosecutors who had not submitted affidavits as well as the New York Times reporter for the article (Tim Arango) even though Judge Cahill expressed concern about a subpoena to the journalist in light of his First Amendment protections. (Indeed, the New York Times subsequently stated that it “will vigorously defend against any effort to target our reporters and their sources.”

Thao’s Motion for Sanctions [6]

On March 12 attorneys for Tou Thao filed a motion for sanctions for alleged prosecutorial misconduct in allegedly (a) having Dr. Roger Mitchell, a former Chief Medical Examiner for Washington, D.C., pressure Dr. Andrew Baker, the Hennepin County Medical Examiner, to change his preliminary findings of “no physical findings [supporting] a diagnosis of traumatic asphyxia or strangulation” to the final findings of “neck compression;” and (b) after Chauvin’s chief medical expert (Dr. Fowler) testified that in his opinion the cause of death was undetermined, Dr. Mitchell wrote to Maryland officials to investigate Dr. Fowler’s qualifications and such an investigation was commenced by the Maryland Attorney General.

The motion then requested an order (a) dismissing the criminal charges against Thao; (b) barring seven attorneys (Including Attorney General Ellison and Neal Katyal) from participating in any trial against Thao; (c) asserting complaints about these attorneys to their professional responsibility authorities; and (d) requiring the State to report Dr. Mitchell to the appropriate medical boards.

The same day (May 12) Minnesota Assistant Attorney General Matthew Frank sent a letter to the Judge, saying that this motion asserted, “Bizarre allegations . . . [that] are false and wrong” and that the State requested one week to file a response to the motion.

Conclusion

The issues keep coming.

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[1] Xiong, State trial postponed to March 2022 for ex-officers charged with aiding and abetting murder in George Floyd death, StarTribune (May 13, 2021); Furber, Judge Delays Trial for Other Officers Charged in Killing of George Floyd, N.Y. Times (May 13, 2021); Bailey, Trial for 3 former officers charged in George Floyd’s murder delayed until March, Wash. Post (May 13, 2021); Karnowski & Forliti (AP), Trial for 3 ex-cops charged in Floyd’s death pushed to March, Wash. Post (May 13, 2021); Winter, Judge Delays trial in George Floyd Case, W.S.J. (May 13, 2021).

[2] See Federal Criminal Charges Against Ex-Minneapolis Policemen Over George Floyd Killing, dwkcommentaries.com (May 7, 2021).

[3] See n.1 supra. See also State’s Response to Defendant Lane’s February 10, 2021 Discovery Motion, State v. Lane, Hennepin County District Court, Case No. 27-CR-20-12951 (May 11, 2021).

[4] See n. 1 supra.

[5] See n. 1 supra; Did Derek Chauvin Agree to Plead Guilty to Third-Degree Murder for Killing George Floyd, dwkcommentaries.com (Feb. 11, 2021).

[6] See n. 1 supra. See also  Motion for Sanctions for Prosecutorial Misconduct Stemming from Witness Coercion, State v. Thao, Court File No. 27-CR-20-12949, Hennepin County District Court May 12, 2021), https://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12949-TT/NOMM05122021.pdf; Letter, Matthew Frank (Assistant Attorney General) to Judge Cahill, State v. Thao, Court File No. 27-CR-20-12949, Hennepin County District Court May 12, 2021).. https://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12949-TT/Correspondence05122021.pdf.

 

 

 

Federal Criminal Charges Against Ex-Minneapolis Policemen Over George Floyd Killing     

On May 7, the federal court in Minneapolis unsealed a federal grand jury indictment of four ex-Minneapolis policeman—Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thau—for allegedly using the “color of the law” to deprive  George Floyd of his constitutional rights to be “free from the use of unreasonable force” when Chauvin held Floyd down by the neck for more than nine minutes while the others did nothing to stop Chauvin. In addition, all four are charged with failing to help provide medical care to Floyd and “thereby acting with deliberate indifference eot a substantial risk of harm.” [1]

The latter three defendants, who are out on bail and scheduled for an August trial on the state charges,, appeared May 7  via Zoom before U.S. District Court Judge  Paul A. Magnuson. Chauvin, however, who is in a state prison as a result of his conviction in state court on charges of second and third degree murder and second degree manslaughter, apparently will appear separately via Zoom on the new federal charges.[2]

The federal statute authorizing the case against Chauvin carries a possible sentence of life in prison or the death penalty because Floyd died during the commission of the alleged offenses, but it is not yet known what penalty federal prosecutors would seek.

This indictment also charges Chauvin with two separate counts alleging he willfully deprived a 14-year-old Minneapolis boy of his civil rights during a 2017 arrest. Chauvin pinned the teenager down and struck him on the head with his flashlight, then grabbed him by the throat and hit him again, according to court documents.

Reactions to this Case

Minnesota Attorney General Keith Ellison commented on these new federal charges, “”The federal government has a responsibility to protect the civil rights of every American and to pursue justice to the fullest extent of federal law.”  federal prosecution for the violation of George Floyd’s civil rights is entirely appropriate, particularly now that Derek Chauvin has been convicted of murder under Minnesota law for the death of George Floyd. The State is planning to present our case against the other three defendants to another jury in Hennepin County later this summer.”

The attorney for the Floyd family, Benjamin Crump, also commented as follows, “Today’s federal indictment for criminal civil rights violations associated with the murder of George Floyd reinforces the strength and wisdom of the United States Constitution. The Constitution claims to be committed to life, liberty, and justice, and we are seeing this realized in the justice George Floyd continues to receive. … We are encouraged by these charges and eager to see continued justice in this historic case that will impact Black citizens and all Americans for generations to come.”

Also supporting these new charges were Al Sharpton and Derrick Johnson:

  • Sharpton, a longtime civil rights figure who eulogized Floyd at his funeral last year and has been a visible supporter of the family, said this new case “shows we have a Justice Department that deals with police criminality and does not excuse it nor allow police to act as though as what they do is acceptable behavior in the line of duty. . . . This is a significant development for those of us who have been engaged in the struggle and police reform movement.”
  • Johnson, National President of the NAACP, called the indictments a “step in the right direction,” but said the case highlights the need for police reforms, including implementing a national registry of police misconduct data.” While Derek Chauvin murdered George Floyd over 9 minutes and 29 seconds, no other police officer on the scene acted to save his life, The horrifying actions and inactions of all four police officers resulted in the preventable death of a loving father, son and brother. No police officer is above the law, nor should they ever be shielded from accountability. We need urgent reforms now.”

The Minneapolis Police and Peace Officers Association, which is providing legal representation for the four officers in their state cases, said it will be doing the same in federal court with the same attorneys.

This criminal case is unrelated to the recent U.S. Department of Justice investigation of the Minneapolis Police Department and to pending developments in the state criminal case against Chauvin—the prosecution’s request for enhanced sentencing of Chauvin, his sentencing hearing this June, his request for a new trial and his anticipated appeal—and the scheduled state court trial of the other three defendants in August. [3]

 

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

[1] Indictment, U.S. v. Chauvin, Thao, Kueng and Lane, U.S. Dist. of Minn. (Case 0:21-cr-00108-PAM-TNL (May 6, 2021), https://int.nyt.com/data/documenttools/george-floyd-killing-civil-rights-charges/a0453a1c7b14ce33/full.pdf; Mannix, 4 ex-Minneapolis cops indicted on civil rights charges in George Floyd death, StarTribune (May 7, 2021); Nakamura, Justice Dept. charges ex-Minneapolis police officers with violating George Floyd’s civil rights, Wash. Post (May 7, 2021); Benner, Four former Minneapolis police officers are indicted on charges of violating George Floyd’s civil rights, N.Y. Times (May 7, 2021); Gurman & Barrett, Federal Grand Jury Indicts Former Minneapolis Police Officers in George Floyd Killing, W.S.J. (May 7, 2021).

[2] See Derek Chauvin Trial: Week Seven (Conviction), dwkcommentaries.com (April 21, 2021).

[3] See these posts to dwkcommentaries.com: Department of Justice Starts Investigation of Minneapolis Police Department (April 22, 2021); Derek Chauvin Trial: Defense Motion for New Trial and Impeachment of Jury Verdict (May 6, 2021);Update on Status of Trial Dates in George Floyd Criminal Cases (Feb. 4, 2021).

 

 

 

 

 

Court’s Questionnaire for Prospective Jurors in George Floyd Criminal Cases

On December 22, the Hennepin County District Court published its 14-page Special Juror Questionnaire for the joint trial of the four former Minneapolis policemen involved in the George Floyd killing on May 25th.[1]

The Questionnaire starts with an instruction to “answer all of the questions as completely and honestly as you can” and if “some of your past experiences would be particularly sensitive, traumatic, or embarrassing” mark them PRIVATE , and the judge will consider them “as privately as possible.”

“PART I. KNOWLEDGE OF THE CASE”

The first question is, “What do you know about this case from media reports?” That is followed by eight more questions about the Floyd case and Floyd demonstrations. Questions 2 and 3 ask about “general impressions of the defendants” and Floyd with six options (“Very negative, Somewhat negative, Neutral, Somewhat positive, Very positive, Other”). Each of these two questions is followed by “Why do you feel that way?”

Question 4 asks “Do you, or someone close to you, have any direct or indirect connections with these events?” and “If yes, please explain.”

Question 5 asks “Have you ever watched video of George Floyd’s death on the news or the internet?” And “If yes,” provide more details.

Question 6 asks “Have you ever talked about George Floyd’s death with your family, friends, co-workers, or discussed it online, for example, on social media? If yes, what opinions have you expressed?”

Question 7 asks “Did you, or someone close to you, participate in any of the demonstrations or marches against police brutality that took place in Minneapolis after George Floyd’s death?” If Yes, “explain how much you were involved,” and “ if you participated, did you carry a sign? And “What did it say?”

Question 8 asks “Did you or someone you know get injured or suffer any property damage during the protests that took place after George Floyd’s death?”

Question 9 asks “Do you believe your community has been negatively or positively affected by any of the protests that have taken place in the Twin Cities area since George Floyd’s death?”

Question 10 asks whether “you can put aside [whatever you have heard about the case or your prior opinions} and decide this case only on the evidence you receive in court, follow the law, and decide the case in a fair and impartial manner?”

“Part II. MEDIT HABITS”

This Part asks eight questions about the prospective juror’s sources of news.

“Part III. POLICE CONTACTS”

This Part asks 14 questions regarding the prospective juror’s contacts with the police and whether the individual “supported or advocated in favor of or against police reform” (Q 3); the individual’s “honest opinion” on various issues about the police (Q. 9); whether the individual “had . .. ever been trained on how to restrain someone or use a chokehold” (Q. 10); whether the individual had “any martial arts training or experience” (Q. 11); whether the individual “or anyone close to you, participated in protests about police use of force or police brutality (Q. 12); “How favorable or unfavorable you are about Black Lives Matter” and explain your response (Q. 13); “How favorable or unfavorable are you about Blue Lives Matter?” and explain your response (Q. 14).

“PART V. PERSONAL BACKGROUND”

This Part has 18 questions, the first 11 of which are fairly basic.

Question 12 asks whether the individual or anyone close to you, has “any training or experience (work or volunteer}” in the following areas: Law; Law enforcement; Criminal justice or criminology; Forensic science; Medicine or health care; Counseling, Psychology or Mental Health; and “Civil Rights or Social Justice Issues.”

Question 13 asks whether the individual or anyone close to you has had any of these experiences: “Victim of Crime, Accused of a Crime, Struggle with Drug Addiction” and Question 14 asks whether any of such experiences would “make it difficult for you to be fair and impartial” and “Why.”

Question 15 asks the individual whether you have had any of these court experiences: “served on a jury in a criminal case, served on a jury in a civil case, testified as a witness in a court case, served on a grand jury, worked for the judicial branch.” Question 16 asks whether any of such experiences would “make it difficult for you to be fair and impartial“ in this case?” And if so, “why?”

Question 17 asks for a list of “any hobbies or special interests you have.”

Question 18 asks for identification of all “organizations you have belonged to or in which you participate as an active volunteer or financial supporter.”

“PART V. OPINIONS REGARDING JUSTICE SYSTEM”

1. “Do you believe that the jury system in this country is a fair system? Why or why not?”

2. “Do your believe that our criminal justice system works? Why or why not?”

3. “Would you have any difficulty following this principle of law, under our system of justice?”

• “defendants are presumed innocent of the criminal charges against them.” (Para. 3.)
• “the prosecution has the burden of proving the defendant guilty beyond a reasonable doubt.” (Para. 4.)
• “defendants have the right to remain silent, and if they exercise this right, their silence is not to be used against them.” (Para. 5)
• “the potential consequences of your verdict, including potential penalty or punishment, must not in any way affect the jury’s decision as to whether or not the prosecution has proven the defendant guilty beyond a reasonable doubt.” (Para. 6.)
• “the jury must decide the case solely on the evidence produced in court and the law that the judge instructs, and not because of bias, passion, prejudice, or sympathy.” (Para. 7.)

“PART VI. TRIAL LENGTH AND ABILITY TO SERVE”

1. “The best prediction is that jury selection will last from March 8, 2021 to March 26, 2021. You will have to appear at the Hennepin County Government Center for 1-2 days in that timeframe . . . If you are selected for the jury in this case, you will have to appear every weekday starting March 29, 2021 until trial and deliberations are finished (estimated to be three to four weeks). Is there any significant hardship or reason why you cannot serve during this time period.”
2. “During jury deliberation (And possible for part of the trial), the jury will be sequestered. That means the jury will work into the evenings and taken to a hotel to stay overnight. Is there any reason why you cannot be sequestered overnight?”
3. “Secure parking will be provided for jurors, free of charge. Are you able to drive yourself, or have someone drop you off each day?”
4. “How difficult do you think it will be for you to evaluate graphic photographs or video, including photos and video of a person who has died?”
5. “The jury is told not to read, watch, or listen to news accounts of a trial they are involved in until it is over, and not to talk to anyone,about the case, not even to one another, and to not post anything on social media or elsewhere, including through jury deliberations. Would you find it difficult to follow these instructions for any reasons?”
6. “Is there any reason why you would not be able to give your complete attention to a trial during your time as a juror?
7. “Do you have any religious or philosophical beliefs, which would make it difficult for you to be a juror?”
8. “Do you have any medical, visual, hearing, physical, or other impairment that may affect your ability to serve as a juror on this case?”
9. “Is there any other reason that you could not be a fair and impartial juror in this case? If yes, Please explain.”
10. “Is there anything else the judge and attorneys should know about you in relation to serving on this jury?”
11. “Do you want to serve as a juror in this case? {Yes. No. Not sure.]”
12. “Why do you feel that way about serving as a juror in this case?”

Prior Court Comments About Jury Issues

At the September 11th hearing, the Judge said, “it would be almost cruel to keep . . . [jurors] in on weeks at a time. Instead, he suggested they be “semi-sequestered.” Jurors [will] drive to court each day for deputies to escort them from their vehicles to a secure elevator, have their lunches brought in to the jury room and then have them escorted back to their vehicles. The Judge also said he anticipates jury selection will take two weeks with each prospective juror to take the witness stand for questioning by the attorneys.

At the November5th hearing, the Judge issued the Court’s Order for Juror Anonymity and Sequestration and said there are “strong reasons to believe that threats to jurors’ safety and impartiality exist“ in these cases and that “all reasonable means should be taken to insulate the jury from such ex parte contacts.” Therefore, the Court ordered the “jurors’ names, addresses and other identifying information . .. [to] . . .be kept confidential by the Court and all parties throughout the trial and deliberation” After the conclusion of the trial, any information about the jurors shall be disclosed only after a “subsequent written Order” by the Court.

The Judge added that the jurors will be partially sequestered during trial with possible full sequestration if the partial plan “proves ineffective in keeping jurors free from outside influence.” In addition, during jury deliberations at the end of the trial, there shall be full sequestration

Conclusion

Although the Court did not specially call for comments on this Questionnaire by the attorneys in this case, they clearly have the right to object to any of these proposed instructions or to suggest other instructions. However, this set appears to cover all of the points.

Nor did the Judge indicate when this Questionnaire would be sent to prospective jurors or when their responses would have to be sumitted to the Court.(The listing of this item on the Court’s website, however, states it was “mailed to prospective jurors summonsed.”)

It is interesting that the Judge expects that the trial of the four consolidated cases will start on the previously established date of March 8, 2021 (only 87 days after today, including Christmas and New Year’s Day holidays), that jury selection will take three weeks (March 8-26) and that the trial will take three to four weeks (March 29 to April 16 or 23). Those appear to be optimistic to this bystander.

How would you like to be a prospective or actual juror in this case?

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[1] Special Juror Questionnaire [blank],State v. Chauvin, Dist. Ct. File 27-CR-20-12646 (Dec. 22, 2020),
https://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12646/JurorQuestionnaire12222020.pdf;

Bailey, Potential Jurors in George Floyd Case asked if they support defunding the police, amid concerns about ‘fair and safe’ trial, Wash. Post (Dec. 22, 2020),https://www.washingtonpost.com/national/george-floyd-trial-jury-selection/2020/12/22/a49ae422-44a6-11eb-a277-49a6d1f9dff1_story.html.

[2] Results of 9/11/20 Hearing in George Floyd Criminal Cases, dwkcommentaries.com (Sept. 12, 2020), https://dwkcommentaries.com/2020/09/12/results-of-9-11-20-hearing-in-george-floyd-criminal-cases;

Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing, dwkcommentaries.com (Nov. 5, 2020), https://dwkcommentaries.com/2020/11/05/courts-orders-regarding-criminal-trial-of-defendants-in-george-floyd-killing;

Order for Juror Anonymity and Sequestration, State V. Chauvin, Court File No. 27-CR-20-12646, Hennepin County District Court (Nov. 5, 2020).

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]

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

[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).

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.)

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

[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).

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).