Tag: Thomas Lane

Developments in State Criminal Cases for George Floyd Killing

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

Delay of Trial [1]

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

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

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

Lane’s Motion for Discovery [3]

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

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

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

Three Co-Defendants Motion for Sanctions [4]

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

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

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

Thao’s Motion for Sanctions [6]

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

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

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

Conclusion

The issues keep coming.

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

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

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

[4] See n. 1 supra.

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

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

 

 

 

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

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

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

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

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

Reactions to this Case

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

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

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

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

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

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

 

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

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

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

 

 

 

 

 

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

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

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

“PART I. KNOWLEDGE OF THE CASE”

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

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

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

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

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

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

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

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

“Part II. MEDIT HABITS”

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

“Part III. POLICE CONTACTS”

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

“PART V. PERSONAL BACKGROUND”

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

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

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

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

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

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

“PART V. OPINIONS REGARDING JUSTICE SYSTEM”

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

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

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

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

“PART VI. TRIAL LENGTH AND ABILITY TO SERVE”

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

Prior Court Comments About Jury Issues

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

Court Affirms Livestreaming of George Floyd Criminal Trial  

On November 5, Hennepin County District Court Judge Peter Cahill ordered that the joint criminal trial of the four defendants—Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thao–subject to the conditions contained in the order, including livestreaming. Thereafter the State objected to livestreaming while it was supported by the Media Coalition. [1]

On December 18, the Judge affirmed its original order for such coverage of the trial and denied the State’s motion to reconsider that order. [2]

The latest order conceded that the Court’s allowing audio and video coverage exceeds that allowed by Minn. Gen. R. Prac 4.02(d), but pointed out that another provision of these rules (1.02) ‘provides that ‘[a] judge may modify the application of [the General Rules of Practice] in any case to prevent manifest injustice.’

The Court concluded this latest order with this statement.  “[T]he State’s suggested procedures to accommodate the Defendants’ Sixth Amendment rights [to a public trial] and the public’s and press’ First Amendment rights to a public trial would be, at best, inadequate, and at worst, mere lip-service to the Defendants’ and the public’s constitutional rights.” (P. 7.)

Conclusion

With this order and the previous order denying the motions for sanctions against the State for alleged deficiencies in discovery, the only pending motions awaiting decision are (i)  Lane’s motion to reconsider joinder of the four defendants for one trial; (ii) the  State’s objection to evidence of Floyd’s prior incident with the Minneapolis police; and (iii) Chauvin and Lane’s objections to the State’s intent to offer evidence of prior incidents involving Chauvin’s alleged use of excessive force.[3]

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[1] Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing, dwkcommentaries.com (Nov. 5, 2020)(order for livestreaming); Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases, dwkcommentaries.com (Nov. 18, 2020)(includes State’s objection to livestreaming); Recent Developments in George Floyd Criminal Cases, dwkcommentaries.com(Dec. 12, 2020)(summary of State’s arguments against livestreaming); George Floyd Cases: Media for Livestream; Chauvin Criticizes State’s Disclosures, dwkcommentaries.com (Dec. 15, 2020).

[2] Order Denying Motions To Reconsider and Amend Order Allowing Audio and Video Coverage of Trial, State v. Chauvin, Dist. Ct. File 27-CR-20-12646 (Dec. 18, 2020); Sawyer, Judge upholds decision to livestream trial of officers in George Floyd killing, StarTribune (Dec. 18, 2020).

[3] Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases, dwkcommentaries.com (Nov. 18, 2020).

Recent Developments in George Floyd Criminal Cases

Since the filing of criminal charges against four former Minneapolis police officers over the May 25th death of George Floyd there have been many submissions to the court, pretrial hearings and court orders that have been summarized in previous posts.[1]  Now we look at the developments in the cases since November 18.

Kueng’s Supplemental Offer of Proof Regarding Floyd’s 5/6/19 Incident [2]

On November 23, Defendant Kueng submitted records of his attorney’s interviews of four other police officers involved in the May 6, 2019 Minneapolis arrest of Mr. Floyd as an offer of proof to admit evidence of that arrest at trial.

State’s Disclosure of Expert Witnesses [3]

 On November 24, the State of Minnesota disclosed the following potential expert witnesses and reports:

  • Michael Berkow;
  • John J. Ryan,
  • William Louis Manion, M.D.
  • Glenn G. Hardin, MPH, DABFT
  • William Louis Manion, M.D.,
  • S. Charles Schulz, II,
  • Michael M. Baden, M.D.,
  • Theodore C. Chan, M.D.,
  • Sellman Charles Schulz, II, M.D.,
  • Lawson F. Bernstein, Jr., M.D.,
  • Joshua O. Zimmerman,
  • Andrew M. Baker, M.D.,
  • Theodore Chan,
  • Michael M. Baden, M.D.

State’s Arguments Against Livestreaming of Trial [4]

On November 25, the State moved for reconsideration of the order for audio and video coverage of the trial. It made the following points:

  • “The Minnesota General Rules of Practice . . . permit audio or visual recordings of criminal trials, but only if the State and Defendants have consented ‘in writing” or “on the record prior’ to trial.” But at least the State had not so consented.
  • “Moreover, even when the parties consent, the Rules prohibit video and audio recordings of ‘any witness who objects thereto in writing or on the record before testifying.’”
  • Neither the U.S. nor the Minnesota Constitution “requires such recordings.” And the “Sixth Amendment’s core purpose—transparency—can readily be achieved with overflow rooms and closed-circuit cameras. “
  • “[R]ecording and publicly broadcasting witness testimony without consent will cause witnesses to lose their privacy and suffer possible threats of intimidation, and may make it less likely that some witnesses will come forward and testify at trial. “

Defendant Thao Asks for Trial Delay & Sanctions on Prosecution [5]

 On December 11, Defendant Tou Thao’s attorney filed a motion to delay the trial from March 8 to July 5 and for sanctions against the prosecution for its alleged delay in sharing important evidence with the defense.

The motion asserted that the Court’s order of June 30 required the prosecution to share all evidence by August 14, but the prosecution has delayed sharing more than 15,000 pages of evidence over eight separate instances. Most significant was the prosecution’s not providing until October 28 an account of a July 8 interview of Hennepin County Chief Medical Examiner Andrew Baker.. The defense attorney also asked the Court to order the State to pay for the defense attorney’s fees and costs caused by the delays and postpone the defense’s deadline to disclose their expert witnesses.

Dr. Andrew Baker in that July 8 interview described “the mechanism of death as Floyd’s heart and lungs stopping due to the combined effects of his health problems as well as the exertion and restraint involved in Floyd’s interaction with police prior to being on the ground.”  (Emphasis in the brief.)

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[1]  See List of Posts to dwkcommentaries—Topical: George Floyd Killing.

[2]  Defendant’s Supplemental Offer of Proof in Support of Motion To Admit Floyd’s May 6, 2019 Incident, State v. Kueng, Court File No. 27-CR-20-12933 (Hennepin County District Court Nov. 23, 2020).

[3] Supplemental Prosecution Disclosure Pursuant to Rule 9.01, Subd. 1, State v. Chauvin, Court File No. 27-CR-20-12646 (Nov. 24. 2020).

[4] State’s Motion for Reconsideration of Order Allowing Audio and Video Coverage of Trial, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County District Court Nov. 25, 2020);  Xiong, Prosecutors challenge judge’s order allowing livestreamng of George Floyd trial, arguing it could harm testimony, StarTribune (Nov. 30, 3030).

[5] Motion for Sanctions and Hearing Regarding Discovery Violations by the State, State v. Thao, Court File No 27-CR-20-12949 (Hennepin County District Court Dec. 11, 2020); Exhibit 1 to said motion (FBI Memo of Interview of Andrew Baker, MD (09/01/20)); Exhibit 2 to said Motion (Letter, Aug. 7, 2020, Office of Hennepin County Attorney to Assistant U.S. Attorney Jeffrey Paulsen); Defense attorney: Prosecutors in George Floyd case should be sanctioned for delaying sharing evidence, StarTribune (Dec. 11, 2020).

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.

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

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

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

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