Pre-Trial Hearing in Federal Criminal Case Over Killing of George Floyd

On January 11, 2022, U.S. District Court Judge Paul Magnuson held a pre-trial hearing in the federal criminal case against three ex-Minneapolis police officers (J. Alexander Kueng, Thomas Lane and Tou Thao) on charges of violating the civil rights of George Floyd in connection with his May 2020 killing. The trial is scheduled to start on January 20.[1]

The Judge expressed his concern about the potential impact of COVID-19 on the trial. “Move the case along and get it tried in a shorter time. The longer we are in the courtroom, the more exposure we have to COVID. And if we get to that point and we don’t have 12 people sitting here, you know what happens. We all go home.” The Judge also expressed concern about the threat of  “outside pressures” that could interfere with the case.

With the prosecution’s filing a list of 48 potential witnesses, the Judge said the case was “getting out of proportion” and that the parties needed to reduce the number of witnesses. The Judge also ruled that a 10-year-old witness will not be allowed to testify and that other witnesses may testify in uniform only if they are appearing in their “official function” and thus an off-duty firefighter [at the scene of the killing] will not be allowed to wear her uniform on the witness stand.

Judge Magnuson also stated that he expects the 12 jurors and six alternates to be selected in two days (January 20 and 21) and the opening statements to begin the following Monday (January 24). There will be no live-streaming of the trial and thereby not allowing the public to follow every minute. Instead there will be only a  few journalists and members of the public in the courtroom while a small group of other journalists and members of the public will watch a video feed of the trial from other rooms in the courthouse.

The next day (January 13), the prosecution filed a brief saying that prohibiting  some witnesses from testifying in the upcoming civil rights case against three former Minneapolis officers will hinder their argument and “deprive the government of its right to a fair trial.” Although they plan to shore up their witness list and heed the concerns for the virus interfering with the trial, “the pursuit of justice should not become a subordinate interest to brevity here. This case involves constitutional violations by sworn law enforcement officers that resulted in the death of a man, and neither COVID nor concerns about security should limit the government or the defense from presenting its case.”[2]

The prosecution also said the nine-year-old witness  is not a mere prop, and objectively serious medical need, “meaning one that is so obvious that even people with no formal medical training would recognize that care is required. Viewed through this lens, it is significant that a then-9-year-old observed and immediately understood that Mr. Floyd needed medical attention.”

In addition, the prosecution also objected to Magnuson’s ruling that calling multiple medical experts to testify would be “inefficient” and “improper.” Prosecutors plan to call two medical experts, including Andrew Baker, who they say is limited to his specialized expertise as Hennepin County Medical Examiner, who”only treats the dead.” As a result, the prosecution wants to call a second expert who can speak to medical issues such how the officers’ compression on Floyd’s airway and torso could hinder his ability to breath, how resuscitation could have saved him and specific effects of the combination of fentanyl and methamphetamine.

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[1] Mannix, With opening arguments on horizon, judge worries COVID outbreak could upend trial of three former Minneapolis officers, StarTribune (Jan. 12, 2022); Memorandum and Order, U.S. v. Thao, et al., Crim. No. 21-108 (D. Minn. Jan. 11, 2022).

[2] Mannix, Prosecutors say barring witnesses in case against ex-officers in George Floyd death deprives them of fair trial, StarTribune (Jan. 13, 2022).

Postponement of State Court Trial of Ex-Policemen for Killing of George Floyd                 

On January 12, 2022, Hennepin County District Court Judge Peter Cahill postponed the commencement of the state trial of three Minneapolis ex-policemen (J. Alexander Kueng, Thomas Lane and Tou Thao) on charges of aiding and abetting the May 2020 second-degree murder and manslaughter of George Floyd. [1]

The Judge ordered the parties’ attorneys to meet before January 16 to select a new trial date between March 14, 2022 and January 9, 2023. If they cannot agree on a new date, the trial will start on March 7 as previously scheduled.

In the meantime, the three men are scheduled to go on trial in federal court starting January 20 on charges of violating Mr. Floyd’s civil rights during his arrest. If that trial has not concluded by the new date for the state trial, the latter shall be continued on a daily basis until the attorneys are available.

In addition, Judge Cahill stated that in the state case the attorneys should set aside three weeks for jury selection and five weeks for trial testimony.

All of these developments happened after the state court trial, conviction and sentencing of Derek Chauvin to 22.5 years imprisonment for second-degree and third-degree murder and second-degree manslaughter of Mr. Floyd.[2] And then in mid-December 2021 Chauvin unexpectedly pleaded guilty to the federal charges against him over the killing of Mr. Floyd with Chauvin to serve the state and federal sentences concurrently in a federal prison.[3] Thus ended Chauvin’s criminal charges and trials over Floyd’s death.

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[1] Xiong, State trial of three officers charged in George Floyd killing postponed from March date, StarTribune (Jan. 12, 2022); Order Granting Joint Request To Continue Trial Date, State v. Thao, Lane, Kueng, Henn. Cty Dist. Ct., File Nos. 27-CR-20-12949, 12951 & 12953 (Jan. 12, 2022).

[2]  See the “Derek Chauvin State Criminal Trial” and “State Court Sentencing of Derek Chauvin” sections of List of Posts to dwkcommentaries—Topical: George Floyd Killing.

[3] Derek Chauvin Pleads Guilty to Federal Criminal Charges Over Killing of George Floyd, dwkcommentaries.com (Dec. 16, 2021).

Federal Criminal Cases Over George Floyd Death Seem Ready for Trial in Mid-January

On November 18, U.S. District Judge Paul Magnuson mailed questionnaires to prospective jurors ordering them to report to the Federal Courthouse in Minneapolis on January 20, 2022, and be ready to serve from mid-January to mid-February on the federal criminal cases against Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thao.[1]

The Judge’s letter said, “In trials of this nature, the Court and the attorneys need to ask probing questions of prospective jurors, including questions about their views on law enforcement, various interest groups, and events that have taken place over the past year-and-a-half. We do this not because we wish to pry into the private lives of prospective jurors, but because we are obligated to ensure that the jurors who hear the case will be fair and impartial.”

The Judge also asked those responding to the questionnaire to avoid media coverage related to this case.

This development looks as if it will interfere with the commencement of the state criminal trial of J. Alexander Kueng, Thomas Lane and Tou Thao, previously scheduled to start on March 7, 2022.[2]

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

1/ Mannix, Federal civil rights trial for ex-Minneapolis-cops in George Floyd killing on track for mid-January,  StarTribune (11/30/21).

2/ Xiong, State trial postponed to March 2022 for ex-officers charged with aiding and abetting murder in George Floyd death, StarTribune (May 13, 2021).

Federal Criminal Cases Over George Floyd Death: Four Policemen To Be Tried Together  

As previously noted, four Minneapolis policeman—Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thao–face a federal grand jury indictment over the death of George Floyd in the District of Minnesota. They are charged with  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 to a substantial risk of harm.” [1]

All four of the defendants have pleaded not guilty to the charges.

Denial of Severance of the Four Cases

On November 29, U.S. Magistrate Judge Tony Leung denied the motions by the last three ex-policemen to sever their federal cases from the one against Derek Chauvin. [2]

The Magistrate Judge said said the attorneys making the motions had failed to prove that Chauvin’s conviction would prevent their clients from receiving a fair trial.

Elaborating on the reasons for that conclusion, the Magistrate Judge said the charges against Chauvin are not identical to the others, but there is “significant overlap and interplay” in the allegations. “Also, the Government will be using essentially the same substantive evidence against each of the Defendants at trial. There will be witnesses. A number, if not a majority, of these same witnesses will be called to testify regardless of whether Chauvin is tried jointly with Thao, Kueng and Lane. The events at issue occurred during a short temporal period on a single day in a single location. In addition to the discrete unities of time and place, there can be no genuine dispute that all four Defendants were at the scene of the events giving rise to this case.”

This decision was made “without prejudice,” meaning that if these three defendants object to this ruling, U.S. District Judge Paul Magnuson, who will be presiding over the trial, may make his own ruling on the motion.

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

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

[2] Mannix, Former Minneapolis officers should be tried together in federal case, says magistrate judge, StarTribune (11/29/21).

Criminal Cases Over George Floyd Killing: Recent Developments  

As mentioned in previous posts, former Minneapolis police officer Derek Chauvin was charged, tried, convicted and sentenced in Minnesota state trial court for the May 2020 killing of George Floyd[1] and he has been criminally charged in Minnesota federal court for that same killing.[2] The other three former police officers who were so involved (Thomas Lane, J. Alexander Kueng and Tou Thao) also face state and federal criminal charges with their state trial scheduled for March 2022 while their request for prohibition of video or audio coverage of the trial is still pending.[3]

There have been recent developments in these cases.

Minnesota Supreme Court OverturnsThird-Degree Murder Conviction of Mohammed Noor.[4]

Former Minneapolis police Officer Mohammed Noor, after trial in state court, was convicted of third-degree murder and second-degree manslaughter for the July 15, 2017, killing of Justine Ruszczyk Damond, and on September 15, 2021, the Minnesota Supreme Court unanimously reversed the third-degree murder conviction and remanded the case for re-sentencing on the manslaughter charge.

The Supreme Court held that the third-degree murder statute required a “depraved mind” or a “generalized indifference to human life”  and that  requirement cannot be satisfied when a defendant’s conduct is aimed at a single person, as was the case with Noor.

Upon remand to the trial court, Noor will be re-sentenced for his conviction for second-degree manslaughter, which is expected to be four years, which given his imprisonment so far for 28 ½ months means he could be eligible for supervised release in 3.5 months.

This decision raises the question of whether it will affect Chauvin’s sentence of 22 ½ years for the second-degree murder of George Floyd. Although the jury also had found Chauvin guilty for third-degree murder and second-degree manslaughter, the 22 ½ year sentence was only based on conviction for second-degree murder.[5] Therefore, the Noor decision does not directly impact Chauvin’s sentence. Perhaps Chauvin’s attorney will argue on appeal that the third-degree murder charge against Chauvin unfairly impacted the entire case against him and thus calls for complete reversal by the appellate court, but Susan Gaertner, former Ramsey County Attorney, thinks that is highly unlikely. This blogger, a retired attorney without criminal law experience, concurs in that reaction.

Chauvin and the Other Three Defendants Plead to Federal Criminal Charges.[6]

In May 2021, Chauvin and the three other officers were criminally charged in federal court with allegedly using the “color of the law” to deprive Mr. Floyd of his constitutional rights to be “free from the use of unreasonable force” in his May 2020 arrest, and on September 14, 2021, all four entered not guilty pleas in federal court.

The pending motions of the other three officers to be tried separately from Chauvin have not yet been acted upon.

On September 16, Chauvin was arraigned on a separate charge in federal court for alleged use of excessive force in the September 2017 arrest of a 14-year-old boy, and Chauvin entered a not guilty plea to this charge.

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

[2] Federal Criminal Charges Against Ex-Minneapolis Policemen Over George Floyd Killing, dwkcommentaries.com (May 7, 2021); Federal Criminal Cases Against Ex-Minneapolis Cops for George Floyd Death: Initial Proceedings, dwkcommentaries.com (June 2, 2021).

[3]  Defendant’s Motion To Exclude Video and Audio Recording of Proceedings, State v. J. Alexander Kueng, Thomas K. Lane, District Court , Court File NO.: 27-CR-20-12953 & 27-CR-20-12931 (Aug. 25, 2021); State’s Memorandum of Law Opposing Motions To Exclude Audio and Video Recording of Proceedings, District Court File NO.: 27-CR-20-12953 & 27-CR-20-12931 & 27-CR-20-12949 (Sept. 1, 2021).

[4] Minnesota Supreme Court Hears Argument About Scope of Third- Degree Murder Statute, dwkcommentaries.com (June 10, 2021); Xiong & Olson, Supreme Court overturns third-degree murder conviction against ex-Minneapolis police officer Mohammed Noor, StarTribune (Sept. 16, 2021); State v. Noor, Opinion, No. A19-1089 (Minn. Sup. Ct. Sept. 15, 2021).

[5] See. n.1.

[6]  Mannix, Four former Minneapolis officers plead not guilty to federal civil rights charges, StarTribune (Sept. 14, 2001); Olson, Chauvin enters not guilty plea to federal civil rights charge involving a 14-year-old, StarTribune (Sept. 16, 2021); Federal Criminal Case Over George Floyd Killing: Request To Sever Chauvin Case from Three Co-Defendants Cases, dwkcommentaries.com (Aug. 9, 2021).

 

Federal Criminal Case Over George Floyd Killing: Requests To Sever Chauvin Case from Three Co-Defendants Case 

On April 20, 2021, the  first criminal trial over the killing of George Floyd resulted in a Minnesota state court jury verdict holding former Minneapolis police officer Derek Chauvin guilty on counts of second-degree murder, third-degree murder and second-degree manslaughter.  On June 25, 2021, Minnesota District Court Judge Peter Cahill sentenced Chauvin to 22.5 years imprisonment for these crimes. [1]

Since then the Minnesota state court has handled various issues relating to the Chauvin conviction and sentencing while also preparing for the criminal trial in March 2022 of the other three former Minneapolis police officers involved in the killing of Mr. Floyd (J. Alexander Kueng, Thomas Lane and Tou Thao).[2]

Federal Criminal Cases Over the Killing of George Floyd[3]

In the meantime, on May 6, 2021, the U.S. Department of Justice filed in the U.S. District Court in Minneapolis an indictment against Chauvin and these other three former Minneapolis police officers. These were the charges:

  • 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.”

Also on May 6, 2021, the Department of Justice filed in the federal court in Minneapolis another indictment of Chauvin for alleged use of unreasonable force against a juvenile in 2017. But the other three former Minneapolis policemen were not involved in this case.

Motions To Sever the Federal Chauvin Case from That Case Against the Other Three Ex-Cops[4]

As of August 4, 2021, the docket sheet for the federal case over the killing of Mr. Floyd had 104 entries, almost all of which are preliminary matters not requiring comments here.

However, on August 3, defendants Thao, Kueng and Lane filed motions to sever their cases from the one against Chauvin, Thao’s motion had the following most extensive statement pf reasons for severance:

  1. The defendants were “not properly joined under Rule 8(b) of the Federal Rules of Criminal Procedure,” which allows charging “2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.”
  2. “The jury will have insurmountable difficulty distinguishing the alleged acts of each defendant from the alleged acts of his co-defendants.”
  3. ”Evidence may be introduced by each defendant which would be inadmissible against other defendants in a separate trial to the prejudice of these defendants.”
  4. “The counts of the indictment are not properly joined under Rule 8(a) of the Federal Rules of Criminal Procedure,which allows charging “a defendant in separate counts with 2 or more offenses if the offenses charged—whether felonies or misdemeanors or both—are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.”
  5. “Mr. Thao’s Fifth Amendment right to not incriminate himself will be prejudiced by the joinder of the counts.”
  6. “Evidence which would be inadmissible were the counts tried separately, may be admitted and considered by the jury to the prejudice of Mr. Thao.”
  7. “The jury will have insurmountable difficult distinguishing evidence presented on one count from that evidence presented on other counts, and will inevitably consider the evidence cumulatively.”
  8. “Mr. Thao will obtain a fair and more impartial Trial [if] he is tried separately from his co-defendants.”

As other filings however, make clear, the U.S. opposes the severance motions but agrees to abide by any order the Court may issue on these motions. However, “a decision on severance is pre-mature,” and all parties “jointly ask that [these] motions[s] be reserved until a point in the future when information relevant to severance of Mr. Chauvin becomes more developed.[5]

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

[2] Xiong, State trial postponed to March 2022 for ex-officers charged with aiding and abetting murder in George Floyd death, StarTribune (May 13, 2021);  Bailey, Trial for 3 former officers charged in George Floyd murder delayed until March, Wash. Post (May 13, 2021); Furber, Judge Delays Trial for Other Officers Charged in Killing of George Floyd, N.Y. Times (May 13, 2021).

[3] Federal Court Charges Against Ex-Minneapolis Policemen Over George Floyd’s Killing, dwkcommentaries.com (May 7, 2021); Federal Criminal Cases Against Ex-Minneapolis Copes for George Floyd Death: Initial Proceedings, dwkcommentaries.com (June 2, 2021).

[4] Forliti (AP), Ex-cops charged in Floyd death want separation from Chauvin, StarTribune (Aug. 3, (2021); Xiong, Former Minneapolis officers request separate federal trial from Derek Chauvin, StarTribune (Aug. 3, 2021); Motion for Severance. United Sates v. Thao, U.S. Dist. Ct., Dist. Minn. File No. 21-CR-108(2) (Aug. 3, 2021); Defendant’s Pretrial Motion for Severance of Derek Chauvin (Defendant 1), U.S. v. Kueng, U.S. Dist. Ct., Dist. Minn. File No. 21-CR-108(2) (Aug. 3, 2021); Motion To Join Co-Defendants Pretrial Motions, U.S. v. Lane, U.S. Dist. Ct., Dist. Minn. File No. 21-CR-108 (Aug. 3, 2021).

[5] Defendant’s Meet and Confer Notice, U.S. v. Kueng, U.S. Dist. Ct., Dist. Minn. File No. 21-CR-108(2) Aug. 3, 2021.See generally List of Posts to dwkcommentaries—Topical: George Floyd Killing.

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).