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).

Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing

On November 5, Hennepin County District Court Judge Peter Cahill issued five significant orders relating to the trial in the criminal cases against the four former Minneapolis policemen involved in the killing of George Floyd: Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thao. [1]

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.

These five orders will be reviewed below.

                  Joint Trial of the Four Defendants[2]

The 51-page Order and Memorandum Opinion sets forth the Factual Background and then Discussion of the four-factor test for joinder established by the Minnesota Rules of Criminal Procedure and Minnesota case law. The following is the Court’s Summary of that detailed discussion (pp. 4-5).

“The first factor weighs strongly in favor of joinder because of the similarity of the charges and evidence against all four Defendants.” Indeed, “the critical evidence at trial”—body-cam videos of three of the defendants and cell-phone video of a bystander; Minneapolis Police Department Policies and Procedures and Training Manuals; autopsy reports and medical and forensic testimony about the circumstances and causes of Floyd’s death; and eyewitness testimony—”will be the same for all four Defendants.”

“The second factor slightly favors joinder in view of the impact of conducting four separate trials . . . would have on eyewitnesses if . .. [they] were forced to relive the events of May 25, 2020, by testifying to the same events at multiple trials,” especially since one of these witnesses is a minor.

“The third factor also strongly favors joinder because there is no indication at this 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.”

The “fourth factor also strongly favors joinder because conducting four separate trials arising from the same underlying incident and involving the same evidence and the same witnesses would result in unwarranted delay and impose unnecessary burdens on the State, the court, and the witnesses. Moreover, in wake of the unprecedented . . . scope of the publicity [about these cases] . . . if trials were to proceed separately for each Defendant, trial-related publicity surrounding the first trial (and succeeding trials) could potentially compound the difficulty of selecting a fair and impartial jury in all subsequent trials. Thus, the interests of justice also warrant joinder.”

Preliminary Denial of Change of Venue[3]

 The Court considered two factors in preliminarily deny the Defendants’ motions to change venue and transfer the case from Hennepin County to another district court in Minnesota: prejudicial publicity and safety concerns of the defendants and their attorneys.

With respect to the first factor, the Court took “judicial notice that the death of George Floyd has generated thousands of articles, reports and commentary in Minnesota, the entire United States, and internationally.” (n. 10.) As a result, “no corner of the State of Minnesota has been shielded from pretrial publicity regarding the death of George Floyd. Because of that pervasive media coverage, a change of venue is unlikely to cure the taint of potentially prejudicial pretrial publicity. Nevertheless, this is only a preliminary ruling and the parties are free to present the evidence from public opinion surveys they are presently conducting. In addition, this Court is planning to issue jury summons earlier than usual and to require summoned jurors to fill out questionnaires well before trial to gauge their knowledge of the case and any potential bias.”

The second factor—safety concerns—calls for “better safety planning,” which is currently being conducted by the Hennepin County Sheriff’s Office and the Court. The safety concerns regarding the 9/11/20 hearing at the smaller Hennepin County Family Justice Center with limited entrances and exits suggests it is more difficult to enhance security at such facilities, which would be true if the cases were transferred to a smaller county. Having the trial at the Hennepin county Government Center would facilitate tighter control of floor access and movement. In short, the “Court believes that safety issues can be mitigated to the point that a fair and safe trial may be had in Hennepin County and a jury can be insulated from outside influence and remain impartial.”

Juror Anonymity and Sequestration[4]

After reviewing the extensive publicity about the death of Mr. Floyd and these cases and related protest and unsolicited ex parte communications to the Court and counsel, 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.

Each Defendant shall have five preemptory challenges of prospective jurors, and the State twelve such challenges. There will be four alternate jurors.

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.

Audio and Video Coverage of the Trial [5]

 The trial shall commence on March 8, 2021, and “may be recorded, broadcast, and livestreamed in audio and video subject to the conditions” contained in the order.

Order Regarding Hennepin County Attorneys[6]

The Court’s oral order removing four members of the Hennepin County Attorney’s Office from these cases is vacated although they may not “appear as advocates in the trials and may not sign any motions or pleadings in these cases.

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[1] Olson, Ex-officers charged in George Floyd case to be tried together in Hennepin County, cameras allowed in courtroom, StarTribune (Oct. 5, 2020).

[2] Order and Memorandum Opinion Granting State’s Motion for Trial Joinder, State v. Chauvin, Court File No. 27-CR-20-12646, Hennepin County District Court (Nov. 5, 2020).

[3] Preliminary Order Regarding Change of Venue, State v. Chauvin, Court File No. 27-CR-20-12646, Hennepin County District Court (Nov. 5, 2020).

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

[5] Order Allowing Audio and Video Coverage of Trial, State v. Chauvin, Court File No. 27-CR-20-12646, Hennepin County District Court (Nov. 5, 2020).

[6] Order, State v. Chauvin, Court File No. 27-CR-20-12646, Hennepin County District Court (Nov. 5, 2020).

Court Sustains Most Charges in George Floyd Criminal Cases  

On October 21, Hennepin County District Court Judge Peter Cahill, with one exception, denied the four defendants’ motions to dismiss all criminal charges for alleged lack of probable cause in the George Floyd criminal cases. The exception was the charge of third-degree murder against Derek Chauvin, which was dismissed. These orders and the reasons for same are contained in the Court’s 107-page Order and Opinion on the four defendants’’ motions to dismiss for lack of probable cause.[1]

In so doing, the Court properly stressed that under Minnesota law its evaluation of  these dismissal motions is “to assess whether the State has come forward with sufficient admissible evidence on each element of the charges . . .to warrant binding each of the Defendants over for trial . . . to accept as true all the allegations made by the State in its Statements of Probable Cause . . . [and to] draw in the State’s favor all inferences that may reasonably be drawn from those facts.” (Pp. 7-8.)

Here, we will review the main points in the court’s sustaining the charges of second-degree unintentional murder and second-degree manslaughter against Derek Chauvin and the charges against the other three defendants (Thomas Lane, J. Alexander Kueng and Tou Thau) for aiding and abetting these charges. Discussion of the dismissal of the third-degree murder charge against Chauvin will be left to the newspaper articles that are cited below.

Finding Probable Cause for Charge of Second-Degree Murder Against Chauvin

 Under the above standard for evaluating such dismissal motions, the court concluded that there was probable cause that the prosecution had established probable cause for the following requirements for this crime: (i) Floyd died; (ii) “Chauvin’s conduct was a substantial causal factor in Floyd’s death;” (iii) “Chauvin intentionally inflicted or attempted to inflict bodily harm on Floyd or intended to cause Floyd to fear immediate bodily harm or death;: and (iv) “Chauvin inflicted substantial bodily harm on Floyd.” (Pp. 35-53.)

In the process of reaching these conclusions, the Court said: (i) “Chauvin never relented and never lessened the pressure of his knee against Floyd’s neck even when Floyd pleaded: ‘I can’t breathe. Please, your knew in my neck’’” (p. 39); and (ii) “Notwithstanding Floyd having gone silent and motionless, the mounting evidence of his lost consciousness, the plaintiff cries and demands from the bystanders, and the obvious reality that Floyd was no longer resisting or non-compliant, Chauvin’s demeanor never changed, and he continued kneeling on Floyd’s neck applying constant pressure to pin Floyd’s face to the pavement for an additional two and a half minutes” (p. 41).

These statements followed  the Court’s “Factual Background,” which stated, in part, the following:

  • “The Critical Nine Plus Minutes between 8:19:18 and 8:28:42 P.M.: Floyd Is Subdued and Restrained Prone in the Street, with Chauvin Kneeling on the Back of Floyd’s Neck, Pinning His Face to the Street, Kueng and Lane Restraining and Pinning Floyd’s Back and Legs to the Street, and Thao Maintaining Bystander Watch.” (p. 22).
  • “Floyd uttered his final words ‘Please,’ at 8:23:55 p.m., and ‘I can’t breathe,’at 8:23:59 p.m.. . . Floyd then fell silent.”  (p. 25.)
  • “Even after Floyd ceased talking and moving and went limp, Defendants maintained their positions.” (p. 25)
  • “As Floyd lost consciousness and shortly before uttering his final words, Lane asked Chauvin and Kueng: ‘Should we roll him on his side?’ Citing concern ‘about the exited delirium or whatever . . .[and] Chauvin rejected Lane’s suggestion, stating that the ambulance was en route.” (p. 25)
  • “Neither Lane nor Kueng did anything to challenge Chauvin’s answer. Instead, they remained in the same position and continued to hold down Floyd’s back and legs.” (p. 25)
  • “After hearing the bystanders’ pleas to check Floyd for a pulse [8:25:40-8-8:26:05 p.m.], Lane asked Kueng if he could detect a pulse. After checking Floyd’s wrist for about ten seconds, Kueng reported: ‘I can’t find one [a pulse].[8:25:45-8:26:00].” (p. 27.)
  • “Kueng continued to check Floyd for a pulse. About ten seconds later, Kueng sighed, leaned back slightly, and repeated: ‘I can’t find one.” [8:26:07-12.] (p. 27.)
  • “[8:26:12-18] Upon learning that Keung could not find a pulse, Chauvin squeezed Floyd’s fingers. Floyd did not respond.” (p. 27/)
  • “Even though Floyd remained unresponsive, the Defendants did not move from their positions. They continued to restrain Floyd—Chauvin with his left knee pressed firmly into Floyd’s neck, Kueng kneeling on Floyd’s back, and Lane holding Floyd’s legs—while Thao kept bystanders back on the sidewalk. They also ignored the off-duty firefighter’s urgent demands that they check Floyd for a pulse and begin chest compressions if he had no pulse. . . None of the Defendants ever attempted PR while Floyd was on the ground.” (pp. 27-28)
  • “At 8:27 p.m., an ambulance arrived on the scene. . . . Still, Chauvin, Kueng, Lane, and Thao did not move from their positions. . . . Indeed, even as Lane explained to emergency personnel that Floyd was ‘not responsive right now,’ Chauvin kept his knee on Floyd’s neck (8:27:36-38).” (p. 28)
  • “[F]or more than a minute after the emergency personnel arrived, Chauvin continued to press Floyd face-down into the pavement, Lane knelt over Floyd’s legs, and Thao continued to push back the crowd.” (p. 28)
  • At 8:28:42 p.m., when the stretcher was ready, Chauvin finally stood up, removing his knee from Floyd’s neck. . . .Floyd remained unresponsive.” (p. 28)
  • “In total, Floyd was subdued, pinned face-down in the street—with Chauvin’s knee pressing into his neck and Kueng and Lane restraining his back and legs—for more than nine minutes and twenty seconds.(8:19:18-8:28:42 p.m.) For over four minutes and forty seconds, Floyd did not speak. (8:24:00-8:28:42) For almost three and a half minutes, Floyd appeared not to be breathing. (8:25:15-8:28:42 p.m.) And for more than two and a half minutes, the Defendants were unable to locate a pulse. (8:25:10-8:28:42). Yet over that entire time period, Defendants remained in the same positions: Chauvin continued to kneel with his left knee pressed firmly down on Floyd’s neck pinning Floyd’s face into the street, Kueng and Lane remained atop Floyd’s back and legs, and Thao continued to prevent the crowd of concerned citizens from interceding.” (p. 29)

Finding Probable Cause for Charge of Aiding and Abetting Second-Degree Murder Against Other Defendants

 Under the previously cited standard for evaluating such dismissal motions, the court concluded “the evidence the State relies upon is sufficient for probable cause purposes for the State’s charges that Thao, Lane and Kueng each independently aided and abetted Floyd’s second-degree unintentional murder by Chauvin.” (p. 79.)

The previously discussed evidence supports a potential jury conclusion “that Lane knew Chauvin was intentionally committing an assault that inflicted substantial bodily harm on Floyd”  and that “Lane  intended to aid Chauvin in the assault on Floyd.” (Pp. 79-91.) The same was true for Kueng (pp 91-94) and Thao (pp. 94-99).

Additional comments on Thao were required because “at no point was he involved in the efforts to physically restrain Floyd. Rather, his role was primarily to maintain watch over the growing crowd of bystanders.”  (Pp. 94-99.) But “a jury could conclude, on the basis of the evidence, that Thao knew that Chauvin was intentionally inflicting substantial bodily harm on Floyd” and that Chauvin’s continuing to kneel on Floyd’s neck for minutes after he had ceased talking, moving, or breathing and knowing that Kueng had not been able to detect a pulse was contrary to MPD policy and could not be a considered a justifiable use of reasonable force.” Moreover, under Minnesota cases, “Active participation in the overt act that constitutes the substantive offense—here, the assault—is not a requirement for aiding and abetting liability” and that “’the lookout’ . . ‘is a classic example’ of an ‘aider and abetter.’”

Finding Probable Cause for Charge of Second-Degree Manslaughter Against Chauvin

 Under the previously cited standard for evaluating such dismissal motions, the court concluded there was sufficient evidence for a jury to conclude that Floyd died and that Chauvin caused that death “by culpable negligence, whereby Chauvin created an unreasonable risk and consciously took a chance of causing death or great bodily harm.” (Pp. 67- 75.)

Finding Probable Cause for Charge of Aiding and Abetting Second-Degree Manslaughter Against Other Defendants

Under the previously cited standard for evaluating such dismissal motions, the court concluded that there was probable cause for the charge of aiding and abetting second-degree manslaughter because there was sufficient evidence for (i) Chauvin’s causing Floyd’s death by culpable negligence, whereby he created and unreasonable risk and consciously took a chance of causing death or great bodily harm; (ii) the other three defendants “knew Chauvin by his culpable negligence, created an unreasonable risk and consciously took a chance of causing death or great bodily harm; “ and (iii) the other three defendants “intended that . . .[their] presence or actions aided Chauvin’s commission of that crime.” (Pp.  99-107)

Conclusion

To this retired lawyer bystander, this Order and Memorandum is exceptionally well reasoned, documented and written. Moreover, I think it implicitly signals that the Judge will deny the defense motions to change venue (unless the demonstrations and protests get further out-of-line) and grant the prosecution’s motion for a joint trial of the four cases. An implicit or explicit consideration for Judge Cahill’s deciding the change of venue motions by the four defendants would have to be not wanting to impose the immense burden that would be placed on another district court in the state in taking on this complex case in which so much already has happened.

If I were representing one of these defendants, I would be very worried about my chances for success at trial.

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[1] Order and Memorandum Opinion on Defense Motions To Dismiss for Lack of Probable Cause, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County District Court (Oct. 21, 2020); Xiong, Ex-Minneapolis police charged in George Floyd’s killing will go to trial; one count against Derek Chauvin dropped, judge rules, StarTribune (Oct. 22, 2020); Assoc. Press, Judge Dismisses a Third-Degree Murder Charge in George Floyd’s Death, W.S.J. (Oct. 22, 2020); Ismay, Judge Dismisses Third-Degree Murder Charge in George Floyd Case, N.Y. Times (Oct. 22, 2020);  Bailey, Judge dismisses third-degree murder charge against officer in George Floyd’s death: upholds more serious charge, Wash. Post (Oct. 22, 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).

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

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

Media Coalition’s Opposition[1]

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

Hearing on the Motion[2]

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

Subsequent Developments [3]

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

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

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

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

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

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

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

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

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

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

Important Prosecution Filings in George Floyd Criminal Cases

On October 12, the prosecution (the State of Minnesota) filed two important documents in the George Floyd criminal cases against four ex-Minneapolis policemen—Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thao. The first is a motion to have all motions and exhibits in the case remain under seal for two business days “to permit the parties to review . . . [them] before they are made available to the public and, if necessary, to notify the Court within two business days of their intent to oppose public disclosure.” The second is the prosecution’s memorandum in support of other evidence the State intends to offer at trial. Here is a summary of those documents.

Motion To Limit Public Access to Case Materials[1]

The prosecution’s motion to limit public access to case materials was precipitated by an October 12th motion by Earl Gray, the attorney for Defendant Thomas Lane, to include in trial evidence a video from an incident on May 6, 2019, when three other police officers were attempting to have George Floyd show his hands, stop moving around and spit out something he had put in his mouth and when Floyd cried out for his “Mama” and “Don’t shoot me, man.”

Gray in his motion for admission of this evidence apparently argued that the 2019 arrest is relevant to his client’s defense because prosecutors have presented a ‘false narrative’ by portraying Floyd as a ‘law-abiding citizen that was afraid for his life.’ Instead, Gray said, “Floyd’s behavior in the earlier arrest is ‘almost an exact replica’ of how he behaved during his fatal encounter with police a year later outside Cup Foods in south Minneapolis. . . . Floyd cried, mumbled and yelled throughout his interview with the police ,” and Gray argued that‘s how Floyd behaves under ‘the influence of a pill.’”

In response to this motion by Mr. Gray, the prosecution immediately filed the motion to have all motions and exhibits in the case remain under seal for two business days “to permit the parties to review . . . [them] before they are made available to the public and, if necessary, to notify the Court within two business days of their intent to oppose public disclosure.” If any of the parties “oppose public disclosure, the court may then request briefing and set a briefing schedule on a motion opposing public disclosure.”  In support of this motion, the prosecution cited U.S. and Minnesota Supreme Court decisions supporting such a restriction, especially where there is a risk of prejudicial pretrial publicity.

This prosecution motion is opposed by the Media Coalition, which includes the StarTribune.

On October 15, Hennepin County District Court Judge, Peter Cahill, will hold a hearing on the prosecution’s motion

Arguments for Additional Evidence[2]

On October 12th the State filed a 44-page memorandum in support of additional evidence it plans to offer at the criminal trials of Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thau.

After a short Introduction, this memorandum sets forth in 12 pages a detailed “Statement of Facts” with evidentiary citations regarding “The Events of May 25, 2020” (the day that Floyd was killed). This included the following regarding the physical restraint of Floyd on the pavement:

  • At 8:11 p.m., Kueng “and Lane handcuffed Floyd’s arms behind his back. . . From this moment on, and for all of the remaining minutes of his life, Floyd’s hands remained handcuffed.” (P.3.)
  • “At 8:19:14-45 p.m., Chauvin, Kueng, and Lane pinned Floyd to the pavement face-down.” (p. 7.)
  • At 8:23:58—8:24:00 p.m., “Floyd then said what would be his final words: ‘I can’t breathe.’ . . .He soon fell silent and lost consciousness.” (P. 9.)
  • “But even after Floyd went limp, Chauvin continued to restrain Floyd’s neck and restraining Floyd’s left hand. Kueng and Lane continued to restrain Floyd’s back and legs.” (P. 9.)
  • At 8:25:20-31 p.m., the “body camera videos appear to show that Floyd’s shallow breaths stopped.” (P. 10.)
  • At 8:25:40-8:26:00 p.m., the “officers maintained their positions—Chauvin on Floyd’s neck, Kueng on his back, Lane on his legs, and Thao standing guard.” (P. 11)
  • At 8:26:12-18 p.m., after Kueng reported he could not find a Floyd pulse and after Floyd did not respond to Chauvin’s squeezing Floyd’s fingers, “Chauvin continued to kneel on Floyd’s neck.” (P. 11.)
  • At 8:27:36-38 p.m., Chauvin “continued to press his knee into the back of Floyd’s neck.” (P. 12.)
  • At 8:27:43-50 p.m., “while emergency personnel leaned down and attempted to check Floyd’s neck for a pulse, Chauvin did not remove his knee from Floyd’s neck.” (P. 12.)
  • At 8:28:45 p.m., “when the stretcher was ready, Chauvin finally removed his knee from Floyd’s neck.” (P. 12.)
  • “All told, Floyd was pinned to the ground—with Chauvin’s knee pressing into his neck, Kueng and Lane atop his back and legs, and Thao standing watch nearby—for approximately nine minutes.” (Pp. 12-13.)

The bulk of this memorandum was the 28 pages of the “Argument” setting forth why the State’s “evidence of 18 prior incidents involving Defendants Chauvin, Kueng, and Thao” Is admissible. (Pp. 15-43.)

Conclusion

EsarlWe now wait to see what happens at the October 15th hearing and how Judge  Cahill resolves these motions. (By the way, another October 12th filing by the prosecution was a supplemental argument for enhanced sentences of these defendants.[3)

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[1] State’s Motion for Order Temporarily Restricting Public Access to Motions and Exhibits, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Oct. 12, 2000); Olson, Prosecutors seek privacy order to keep details of George Floyd’s 2019 arrest from public view, StarTribune (Oct. 13, 2020)  Gray’s motion is not available on the public website of filings in the Lane case, but the StarTribune obtained a copy since it is a member of the Media Coalition and thus a party in an ongoing dispute over what documents are public in the case. (See Gag Order in George Floyd Murder Cases, dwkcommentaries.com (July 9, 2020); Media Coalition Asks Court To Release BodyCam Footage of George Floyd Killing, dwkcommentaries.com (July 14, 2020).)

[2] State’s Memorandum of Law in Support of Other Evidence, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Oct. 12, 2020); Mannix, Prosecutor: Ex-officers pinned George Floyd for 9 &1/2 minutes, including after they could not find a pulse, StarTribune (Oct. 14, 2020). See also Revised Length of Time for Minneapolis Police Restraint of George Floyd, dwkcommentaries.com (June 18, 2020).

[3] Prosecution’s Supplemental Argument for Enhanced Sentences for Defendants in George Floyd Criminal Cases, dwkcommentaries.com (Oct. 13, 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.

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

[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).