Tag: Thomas Lane

Important Prosecution Filings in George Floyd Criminal Cases

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

Motion To Limit Public Access to Case Materials[1]

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

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

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

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

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

Arguments for Additional Evidence[2]

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

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

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

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

Conclusion

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

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

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

[3] Prosecution’s Supplemental Argument for Enhanced Sentences for Defendants in George Floyd Criminal Cases, dwkcommentaries.com (Oct. 13, 2020).

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

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

Background for This Submission[2]

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

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

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

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

Details of Supplemental Submission

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

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

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

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

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

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

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

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

Reaction to This Submission

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

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

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

 

Chauvin Out of Prison on Bail 

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

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

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

Protestors[3]

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

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

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

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

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

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

 

Additional Developments in George Floyd Criminal Cases

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

Change Venue To Protect Defendants’ Safety [2]

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

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

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

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

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

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

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

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

Prior Acts of Chauvin, Kueng and Thao [3]

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

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

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

Additional Arguments Against Joinder of Cases for Trial [4]

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

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

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

Thomas Lane Case  [5]

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

Alexander Kueng Case [6]

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

 Press Articles about Defendants [7]

There also have been press articles about the defendants.

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

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

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

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

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

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

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

The Four George Floyd Criminal Cases Should Remain in Minneapolis

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Developments in George Floyd Criminal Cases

As previously discussed, the September 11 hearing in the four George Floyd criminal cases had many arguments and disclosures by the parties and judge’s decisions. [1]  Here is a summary of filings in the cases since that hearing.

State’s Response to Chauvin Dismissal Motion [2]

On September 18 the State responded to Derek Chauvin’s motion to dismiss the criminal complaint for alleged lack of probable cause. The State’s 42-page brief had a detailed statement of facts regarding the May 25th police encounter with Mr. Floyd and discussion of the relevant law. Here is its summary of the State’s position:

  • “There is probable cause for each charged offense in the complaint. On May 25, 2020, Chauvin, Kueng, and Lane pinned Floyd to the ground face-down after he was suspected of using a counterfeit $20 bill to purchase a pack of cigarettes. Chauvin pressed his knee into Floyd’s neck and held Floyd’s handcuffed left hand behind his back. Kueng knelt on Floyd’s back and likewise pinned Floyd’s handcuffed arms behind his back. Lane restrained Floyd’s legs with his hands and knees. And Thao—who saw what the other officers were doing and heard Floyd’s cries for help—encouraged the others to continue pinning Floyd down, pushed back a group of concerned bystanders, and prevented them from intervening.”
  • “In the first five minutes Floyd was on the ground, he told the officers at least twenty times that he could not breathe. He told them nearly ten times that he was dying. And then he fell silent. He stopped moving. He stopped breathing. And the officers could not find a pulse. As Floyd lost consciousness, a crowd of bystanders pleaded with the officers. They told the officers they were killing Floyd. They screamed that Floyd had stopped moving. They alerted the officers that Floyd had stopped breathing. And they begged the officers to take Floyd’s pulse. Nonetheless, the officers continued to pin him to the ground—with Chauvin kneeling on Floyd’s neck, Kueng on Floyd’s back, Lane on Floyd’s legs, and Thao standing watch to prevent the bystanders on the sidewalk from approaching the other officers and Floyd.”
  • “All told, the officers held Floyd in that position for approximately nine minutes—about five times longer than the national anthem, and four times longer than President Lincoln’s Gettysburg Address. During that time, Chauvin continued to kneel on Floyd’s neck for about four minutes after Lane told the other officers that Floyd was “passing out,” and for two and a half minutes after Kueng said Floyd did not have a pulse. Indeed, he continued to press his knee into Floyd’s neck for a full minute after emergency medical personnel arrived on the scene, and even while emergency personnel tried to check Floyd’s pulse.”

“Probable cause is manifest. The facts here “would lead a person of ordinary care and prudence to hold an honest and strong suspicion” that Chauvin committed second-degree murder, third-degree murder, and second-degree manslaughter. State v. Ortiz, 626 N.W.2d 445, 449 (Minn. App. 2001). The evidence is more than sufficient to establish probable cause for each offense. This Court should therefore deny Chauvin’s motion to dismiss.”

State’s Motion for Reconsideration of  Disqualification of Hennepin County Attorneys [3]

On September 14, the State asserted that “there is no rule which requires the inclusion of a non-attorney witness when [an attorney is] speaking to an experienced and routine government witness, and ABA guidance specifically contemplates a prosecutor meeting with such a witness one-on-one, and undoubtedly four-on-one, without triggering ethical or practical concerns. . . . [T]he meeting [of] these four[HCAO] prosecutors was not any sort of “sloppy” act or unethical shortcutting. Rather, it was a reasoned decision made by conscientious public servants.”

Moreover, “the State does not plan for any of these attorneys to be a trial advocate in this case, and defense counsel has not actually identified a credible scenario under which any of them would be disqualified from serving as such, e.g. by becoming a “necessary witness” at trial, which is the defense’s burden. With that in mind, it is unwarranted to further restrict the State still more: by prohibiting the State from even consulting with these experienced prosecutors (and thus preventing Mr. Freeman and Mr. LeFevour from supervising these matters). Such a broad removal of Mr. Freeman, Mr. LeFevour, Ms. Sweasy, and Mr. Lofton unduly prejudices the State.” In addition, two of the four attorneys have “recused themselves from the case and have had no further involvement in the case.”

In addition to its citation of relevant rules and cases, the State submitted an affidavit of William J. Wernz, who is described by the Minnesota State Bar Association as the author of Minnesota Legal Ethics: A Treatise and as “one of the nation’s foremost authorities on legal ethics.”  After reviewing the relevant materials, Mr. Wernz stated under oath, “in my opinion the interviews of the Hennepin County Medical Examiner by the HCAO did not furnish any basis for conclusion that they violated Rule 3.7, nor that any of them who acted as advocate at trial would violate Rule 3.7 by so doing.”

State’s Additional Discovery Disclosures [4]

On September 16, the State disclosed that it had provided defense counsel with the body worn camera video of Mr. Floyd’s May 6, 2019 incident with the Minneapolis police. On the same date, the State disclosed its having provided other materials.

Kueng’s Request for Preemptory Challenges [5]

On September 15, Defendant J. Alexander Kueng requested that if the four cases are consolidated for trial, each of the defendants should be granted 10 preemptory challenges (but at least five such challenges) of potential jurors.

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

[1] See the following posts and comments in dwk commentaries: Agenda for the 9/11/20 Hearing in the George Floyd Criminal Cases (Sept. 2, 2020); Preview of 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 10, 2020); Comment: Rule 404 Evidence Motions: More Details  (Sept. 10, 2020); More Details on 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 11, 2020);Results of 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 12, 2020).

[2] Chauvin Moves To Dismiss Criminal Complaint, dwkcommentaries (Aug. 28, 2020); State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause, State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept.18, 2020); State’s Exhibits for Opposition to Chauvin’s Dismissal Motion ,State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept.18, 2020).

[3] State’s Notice of Motion and Motion for Reconsideration of Order Prohibiting Participation of Michael O. Freeman and Others, State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept.14, 2020); Affidavit of William J. Wernz, State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept.14, 2020).

[4] Letter, Matthew Frank to Judge Cahill, State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept.16, 2020); Supplemental Prosecution Disclosures Pursuant to Rule 9.01, Subd. 1, State v. Chauvin, Civil Case No. 27-CR-20-12646 (Sept. 16, 2020).

[5] Defendant’s Position on Peremptory Challenges, State v. Kueng, File No. 27-CR-20-12953 (Sept. 15, 2020).

 

 

 

 

Status of Civil Litigation Over George Floyd Killing

On July 15, attorneys for the family of George Floyd (by their trustee Kaarin Nelson Schaffer, a Minnesota attorney and resident of Hennepin County) sued the City of Minneapolis and the four ex-police officers involved in Floyd’s death—Derek Chauvin, Tou Thao, Thomas Lane and J. Alexander Kueng. The 40-page Complaint has three counts. “Count I—42 U.S.C. §1983—Fourth Amendment Violations” is asserted against the four ex-policemen while counts II and III are against the City of Minneapolis: “Count II– 42 U.S.C. §1983—Monell Liability” and “Count III–42 U.S.C. §1983—Canton Liability.” [1]

The only development so far in the case is the August 18 filing of a Stipulation for 60-Day Stay of Litigation between the plaintiff and the City of Minneapolis. Such a stay until October 17 was requested “so that the parties may continue to discuss the possibility of a longer stay which would continue until the criminal proceedings against the individual Defendants are completed.”[2]

The next day, two Minneapolis attorneys—Gregory M. Erickson and Erick G. Kaardal–entered their appearances for defendant Derek Chauvin.

Background of U.S. District Judge Susan Richard Nelson[3]

Judge Susan Richard Nelson, who is presiding over this civil case, had 23  years of experience as an attorney in Pennsylvania, Connecticut and Minnesota, the last 16 as a skillful attorney in high stakes civil litigation for an eminent Minneapolis law firm. Then in 2000 the judges of the U.S. District Court for the District of Minnesota appointed her to the position of U.S. Magistrate Judge, who handles various pretrial matters and settlement conferences.

Most relevant for the current civil case over George Floyd from Nelson’s experience as a Magistrate Judge was her supervising settlement discussions over a racial discrimination suit by five high-ranking Black Minneapolis police officers—including current Chief Medaria Arrandondo. In July 2008, “the parties were on the of a $2 million settlement that also included the addition of a new deputy police chief position focused on documenting and responding to reports of discrimination both within the department and in the community. The tentative agreement included data collection about racially based policing and publication of that data; the Police Department’s adherence to terms of a previously proposed federal consent decree; and ongoing court oversight to ensure the settlement agreement’s terms were implemented and followed.”

One of the attorneys for the plaintiffs, Robert Muller, recently said Nelson “artfully encouraged the parties to work towards a potential resolution that included provisions beyond simply monetary relief. Her encouragement prompted the parties to be creative, dig in, and come up with what could have been very meaningful [police] reform.”

However, the Minneapolis City Council failed to approve this settlement. A year later the case was settled, but without the previously agreed upon policy changes.

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

[1] See these posts to dwkcommentaries.com: George Floyd’s Family Sues City of Minneapolis and Four Ex-Officers Involved in His Death (July 16, 2020); George Floyd’s Family’s Complaint Against the Four Ex-Police Officers Over His Death (July 17, 2020); George Floyd Family’s Complaint Against the City of Minneapolis Over His Death: Count II (July 18, 2020); George Floyd Family’s Complaint Against the City of Minneapolis Over His Death: Count III (July 19, 2020).

[2] Stipulation for 60-Day Stay of Litigation, Schaeffer v. Chauvin, Civil No. 20-1577 (Aug. 18, 2020, U.S. Dist. Ct., D. Minn.).

[3] Montemayor, Judge overseeing Floyd family’s federal suit no stranger to high stakes litigation, StarTribune (Sept. 6, 2020); Susan Richard Nelson, Wikipedia.

Results of 9/11/20 Hearing in George Floyd Criminal Cases

Information about what happened at the 9/11/20 hearing is provided by many media reports.[1] Here is a summary of those reports, again following the court’s Agenda for the hearing.

State’s Motions

Joint Trial. The State’s arguments were presented by Special Assistant Attorney General Neal Katyal, the famous attorney, law professor and commentator from Washington, D.C. He argued that the evidence against all four defendants is similar, that witnesses and family members are “likely to be traumatized by multiple trials” and that the interests of justice necessitate a single trial because separate trials would taint future juries. He also said, “The defendants watched the air go out of Mr. Floyd’s body together. And the defendants caused Mr. Floyd’s death together.”

Thao’s attorney responded to the last point by arguing that the jury pool already has been tainted by comments about the case by Attorney General Ellison and others.

A St. Paul attorney who is not involved in the case, Paul Applebaum, said, “it’s going to be tough for the defense attorneys to get the cases separated, partly because it would be difficult for Chauvin to blame the other officers for the charges of murder and manslaughter against him, but also because of the burden of holding four separate trials.”

Aggravating Factors for Upward Sentencing. Assistant Attorney General Matthew Frank argued that Floyd was particularly vulnerable because he was handcuffed and pinned to the ground. Judge Cahill expressed some skepticism of this point by asking whether what happens during an encounter qualifies for this purpose.

In  its Notice of Intent To Offer Other Evidence of 9/10/20, the State said it intended to offer evidence of Chauvin’s eight prior instances of use of excessive force, including use of  neck and upper body restraints.  In four of those, Chauvin allegedly used them “beyond the point when such force was needed under the circumstance,” an indication of his pattern, including his restraint of Floyd.[2]

Defendant’s Motions

 Motions for Change of Venue. Judge Cahill said it was too early to decide on a change of venue for the trial. He noted that Hennepin County District Court has been sending questionnaires to potential jurors to complete at home because of COVID risks and for the sake of expediency and that the court could start polling potential jurors ahead of the scheduled March 8 trial.

But two of the defense attorneys argued that the questionnaires should be completed in person at the courthouse because it carries more weight and meaning. Assistant Attorney General Matthew Frank agreed.

In response to defense arguments about adverse public opinion in Hennepin County, the Judge asked one of them, “There really isn’t a country, would you agree, or a state in this country where there hasn’t been a lot of publicity about George Floyd’s death?”

Jury Sequestration. The Judge said “it would be almost cruel to keep them in on weeks at a time. Instead, he suggested they be “semi-sequestered:”  jurors 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.

Motion to Disqualify HCAO [Hennepin County Attorney’s Office]. From the bench Judge Cahill said the HCAO’s work “sloppy” because they sent prosecutors to question the medical examiner, making them witnesses in the case. Therefore, he disqualified County Attorney Freeman and three assistants who questioned the Examiner because they are potential witnesses. However, others from the Office were not disqualified.

Afterwards Freeman and the Minnesota Attorney General requested reconsideration of this decision, which Judge Cahill granted. The request stated, “Any suggestion by Judge Cahill that the work of . . . [two Assistant County Attorneys] was sloppy was incorrect. The . . .[HCAO] fully stands by the work, dedication and commitment of two of the state’s best prosecutors. That third party mentioned by Judge Cahill does not need to be a non-attorney. [The two attorneys in question] asked to leave the case on June 3 and Frank [the other attorney in question] is the attorney of record, making . . .[the other two attorneys] valid third-parties and eligible to be called as witnesses by the defense. This HCAO decision is consistent with the relevant Minnesota Supreme Court case.

Rule 404 Evidence Motions. The Judge denied defense’s intent to offer evidence regarding Floyd’s arrest and conviction in Texas as it was irrelevant. He also denied the defense request for evidence regarding Floyd’s 05/06/19 medical incident at the Hennepin County Medical Center although he said it could come up at a later date.

Administrative Matters

Jury Selection. The Judge said that he anticipates jury selection will take two weeks with each prospective juror to take the witness stand for questioning by the attorneys.

COVID-19 Restrictions. The Judge said these restrictions would be in place with overflow rooms for family and press.

Trail Length. The Judge said he anticipates a four-week trial.

Conclusion

Although I was not in the courtroom to observe the Judge, the journalists’ reports suggest that the Judge is leaning towards a consolidated trial of all four defendants in Hennepin County under his supervision.

During the 3.5 hour hearing a highly organized, peaceful group of several hundred protesters gathered in front of the heavily fortified Family Justice Center. At first they laid silently on the ground for eight minutes and 46 seconds, which was the initially reported duration of the police pinning of Floyd on the pavement on May 25th (that figure was incorrect; the corrected number is seven minutes and 46 seconds).[3] When they rose, Marvin Gaye’s recorded voice sang, “Mother, mother, there’s too many of you crying” (the first verse from the late singer’s 1970 song “What’s going on”).

The protesters then repeatedly chanted, “Indict, Convict, Send These Killer Cops to Jail. The Whole Damn System Is Guilty As Hell!” Another call was “Say his name!” with the “George Floyd” response. Another: “Who killed him?” and “MPD.” The messages on their signs included the following: “No clemency for killer kkkops” and “Recall Freeman” and a reconfigured MPD badge to say “Murderous City of Lakes Police.”

When Lane and Kueng and their attorneys left the building, they were met by protestors yelling “Murderer!” The crowd then remained until Floyd’s family members left the building, and many of the protestors turned into a dance line, including the Electric Slide.

The protestors apparently are not aware that their protests are ammunition for the defendants’ arguments for transferring the cases to another county, where emotions are not so virulent. The protestors should adopt a different strategy.

After the hearing, Ben Crump, an attorney for the Floyd family, publicly expressed outrage over defense suggestions that Floyd’s use of drugs or earlier run-ins with the police were relevant to the killing of Floyd. “The only overdose was an overdose of excessive force and racism. It is a blatant attempt to kill George Floyd a second time.”

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

[1]  Xiong & Olson, Judge disqualifies some in Mike Freeman’s office for ‘sloppy work’ in George Floyd case, StarTribune (Sept. 11, 2020); LIVE UPDATES: Tentative 2-week jury selection, 4-week trial format for George Floyd case, kstp.com (Sept. 11, 2020); Judge In Floyd Case Disqualifies Members of Hennepin co. Attorney’s Office, minnesota.cbslocal.com (Sept. 11, 2020); Olson, Protestors confront former Minneapolis police officers with shouts of ‘murderer,’ StarTribune (Sept. 11, 2020); Protestors Shout At Former MPD Officers As They Exit Pretrial Hearing in George Floyd Case, minnesota.cbslocal.com (Sept. 11, 2020); Collins & Williams, George Floyd killing: Judge disqualifies Freeman from cops’ trial, MPRNews (Sept. 11, 2020); Read Hennepin County Attorney Mike Freeman’s response to being disqualified from George Floyd case, StarTribune (Sept. 11, 2020); Furber, Arango & Eligon, Police Veteran Charged in George Floyd Killing Had Used Neck Restraints Before, N.Y. Times (Sept. 11, 2020); Bailey, Prosecutors allege former Minneapolis officer used neck restraint in several other cases before George Floyd’s death, Wash. Post (Sept. 11, 2020); George Floyd’s Family Lawyer Pushes Back on Police Claims (video), N.Y.Times (Sept. 11, 2020); Officers charged in George Floyd killing seek to place blame on one another, Guardian (Sept. 11, 2020).

[2] State’s Notice of Intent To Offer Other Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin county District Court Sept. 10, 2020).

[3] Revised Length of Time for Minneapolis Police Restraint of George Floyd. dwkcommentaries.com (June 18, 2020).

 

More Details on 9/11/20 Hearing in George Floyd Criminal Cases

Yesterday’s post and comment provided a preview for today’s hearing.[1] Here are some more details for the hearing, again following the Agenda for the hearing.

State’s Motions

  1. Motion for Joint Trial.[2]

On September 10, the State submitted a 28-page reply in support of its motion for a joint trial, but time constraints do not allow for its examination and summary in this post.

One of the issues for this motion is whether or not the defendants have antagonistic defenses. Here are more details on that issue.

Chauvin’s attorney has said that his client did not know the full picture of what was happening when he and Thao arrived later on the scene to find Lane and Kueng struggling to get Floyd into the back seat of their squad car. The attorney also suggested that these other two had mishandled the scene by not doing enough to try to calm Floyd, by failing to administer naloxone and by  delaying the request for an ambulance and thereby causing the death.

Chauvin and Thao also may argue that as late arrivals on the scene they were deferring to Lane and Kueng irrespective of their lack of seniority and rank.

Thao will emphasize his “human traffic cone” role while the other three were physically restraining Floyd.

Lawyers for Lane and Kueng, both rookies, have emphasized that they were following the orders of their superior, Chauvin, and that Lane twice tried to intervene to get Floyd turned over, but Chauvin refused. Kueng also may testify about faulty training by Chauvin on how to handle a detention while Kueng and Thao may point to the history of 18 complaints about Chauvin’s conduct as an officer.

Lane’s attorney said, “It is plausible that all officers have a different version of what happened and officers place blame on one another.”

All four, however, apparently are arguing that Floyd’s death was accelerated by drugs in his system

Defendants’ Motions

  1. Discovery Motions.[3]

Late on September 9, the State submitted a response to such motions from all four defendants. Here are its main points:

  • The State already had disclosed the Hennepin County Medical Examiner’s complete file and that although the State had no obligation to disclose the autopsy reports by the Armed Forces Medical Examiner and by experts retained by the Floyd family (Drs. Baden and Wilson), the State had asked these persons for these documents and if they are so provided, the State would provide them to the defendants.
  • With respect to Floyd’s 5/5/19 incident with the MPD, the State had requested any body worn camera footage from the MPD and, if it exists, it would be provided; the Hennepin County Attorney’s Office has no record of a referral for prosecution; and any other prosecuting agencies are not within the State’s control.
  • The State stated there is no factual basis for the request for documents on Floyd’s acting as an informant and gang affiliations and the requests were denied.
  • If possible, the State will produce the MPD training PowerPoints in the original format.
  • The State denied the request for the State’s document indices as privileged attorney work product.
  • The State already has produced the MPD Internal Affairs Public Summaries for all four defendants, but opposes any other disclosure.

Conclusion

On a separate note, there are planned protests near the courthouse on the day of the hearing. As a result, windows on government buildings have been boarded up and law enforcement officials are setting up a perimeter to keep protesters at a distance.

In fact, the hearing will be held in the nearby Family Justice Center, where the Hennepin County Family Court is located, in downtown Minneapolis.

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

[1] Preview of 9/11/20 Hearing for George Floyd Criminal Cases, dwkcommentaries.com (Sept. 10, 2020); Comment: Rule 44 Evidence Motions: More Details, dwkcommentaries.com (Sept. 10, 2020). See also Xiong, Several key issues at stake Friday morning in Hennepin County court hearing in George Floyd case, StarTribune (Sept. 10, 2020).; Collins, Judge to hear arguments Friday in Floyd killing case, MPRNews (Sept. 11, 2020).

[2]  State’s Reply in Support of Motion for Joinder, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin county District Ct. Sept. 10, 2020); Bailey, Former Officers charged in George Floyd killing turn blame on each other, Wash. Post (Sept. 10, 2020),

[3] State’s Response to Defendants’ Motions To Compel Disclosure, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin county District Ct. Sept. 9, 2020)

Preview of  the 9/11/20 Hearing in George Floyd Criminal Cases

This preview will follow the Agenda for the 9/11/20 hearing in the four George Floyd criminal cases that has been set by the Hennepin County District Court Judge Peter Cahill.[1]

State’s Motions

  1. Motion for Joint Trial[2]

On August 12, the State asked the court to consolidate all four of the cases for one trial on the grounds that the charges and evidence in all four cases are similar; that there would be less negative impact on witnesses and family members; the defenses of the four ex-officers were not antagonistic; and the interests of justice would be advanced.

Unsurprisingly all of the four defendants are opposing this motion. Here is a summary of their arguments: Chauvin: other defendants likely to blame Chauvin, whose defenses are likely to blame the others and thus they are mutually antagonistic; trying Chauvin first is the sensible approach which would dictate the need for, and scope of, any other trials. Kueng: different evidence on whether and how the defendants worked in close concert; no particularly vulnerable witnesses; antagonistic defenses; interests of justice do not favor joinder. Lane: likely antagonistic defenses with each defendant having different version of what happened and who is to blame, forcing jury to choose between defendants’ testimonies. Thao: Minnesota has favored separate trials; unknown if “overwhelming majority” of evidence will be same in all the cases; Thao did not work in close concert with the others; impact on Floyd family is not a factor; nature of Floyd’s death does not favor joinder; antagonistic defenses are highly likely; COVID-19 favors separate trials with smaller gatherings at each.

  1. Motion to Submit Aggravating Factors to Jury (Blakely)[3]

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

On August 28, the State gave notice of its intent to seek an upward sentencing departure for Chauvin on the grounds that Floyd was particularly vulnerable and was treated with particular cruelty by Chauvin, that Chauvin abused his position of authority, committed the crime as part of a group of three or more offenders who actively participated in the crime and in the presence of multiple children.

  1. Motion for Expert Witness Disclosure[4]

On August 28, the State moved for establishing deadlines of disclosure of expert witnesses with the following suggestions: Initial Expert Disclosures (12/08/20) and full Expert Disclosures (01/08/21).

Defendants’ Motions

  1. Motions for Change of Venue[5]

All four defendants have moved for change of venue with the following arguments: Chauvin (excessive pretrial publicity in Twin Cities); Lane (transfer to Washington or Dakota County because fair trial impossible in Hennepin County); Thao (fair trial impossible In Hennepin County; change to St. Louis, Clay or Crow Wing County); Kueng (prejudicial publicly in Hennepin County; change to  another county “outside the seven-county metro area, such as Stearns County or another county with appropriate facilities and demographics”).

  1. Jury Sequestration and Anonymity Motion[6]

On August 28, Thao moved for jury sequestration and juror anonymity due to “the notoriety of the case.”

  1. Motion to Disqualify HCAO [Hennepin County Attorney’s Office][7]

The only apparent motion to disqualify the HCAO was filed on August 6 by the attorney for Kueng on the ground that the County Attorney had made prejudicial comments about the defendants, and the very next day (August 7) Judge Cahill denied the motion.

Thus, this must be an erroneous agenda item.

  1. Rule 404 Evidence Motions[8]

On August 27, Kueng gave notice that he may offer at trial evidence regarding  (1) the circumstances of (a) Floyd’s 05/06/19 arrest by MPD; (b) Floyd’s 05/06/19 medical intervention at Hennepin County Medical Center; and (c) Floyd’s 08/09/07 arrest and subsequent conviction in Texas for Aggravated Robbery with a Deadly Weapon.

  1. Discovery Motions[9] On August 24, Thao filed a motion to compel discovery of the following regarding the investigation and death of Floyd; (1) complete Hennepin County Medical Examiner’s Office file; (2) any and all reports and autopsies performed by Dr. Michael Baden; (3) any and all reports and autopsies performed by Dr. Allecia Wilson; and (4) entire Office of the Armed Forces Medical examiner file.

On August 28, Chauvin filed a motion for the State’s disclosure of (1) body worn camera/audio from MPD CN-201 9-127538 from Floyd’s arrest; (2) files pertaining to Floyd’s cooperation as an informant for the MPD, FBI or any other state or federal law enforcement agency; (3) files documenting Floyd’s activity as a gang member or affiliate within the past five years; (4) information regarding Floyd’s 05/06/19 drug possession/sale investigation; (5) training materials with active imbedded links to video portions; and (6) index to State’s document disclosures.

Administrative Matters

  1. Jury Selection
  • Method
  • Preemptory Challenges
  1. In-Court Presence/COVID-19 Restrictions
  2. Overflow rooms/Audio-Visual Coverage
  3. Overnight/Special Transcript Requests
  4. Trial Length/Daily Schedule

Substantive Matters

The Judge already has announced that the only substantive matters—the four defendants’ motions to dismiss for alleged lack of probable cause for the criminal charges—will be decided on the briefs and factual record without argument at the hearing.[10] The only new details on these motions is the State’s recent opposition to Defendant Kueng’s dismissal motion and its future opposition to the recent Chauvin motion. [11]

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[1] Agenda for Court’s 9/11/20 Hearing in George Floyd Criminal Cases, dwkcommentaries.com (Sept, 2, 2000); Comment: More Informed Reaction to Agenda, dwkcommentaries.com (Sept. 7, 2020).

[2] Prosecution Requests One Trial for the Four Former Policemen Charged with Floyd Killing, dwkcommentaries.com (Aug. 13, 2020); Chauvin’s Memorandum of Law Opposing the State’s Joinder Motion, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Sept. 8, 2020); Lane’s Defense Objection to State’s Motion for Joinder, State v. Lane, Court File No. 27-CR-20-12951 (Hennepin County Dist. Ct. Sept. 8, 2020); Kueng’s Objection to the State’s Motion for Joinder, State v. Kueng Court File No. 27-CR-20-12953 (Hennepin County Dist. Ct. Sept. 8, 2020); Thao’s Memorandum in Opposition to State’s Motion for Joinder, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County Dist. Ct. Sept. 8, 2020);  Xiong, Attorneys for former officers in George Floyd murder case want separate trials, StarTribune (Sept. 8, 2020).

[3]  State’s Notice of Intent To Seek an Upward Sentencing Departure, State v. Chauvin, et al.,Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Aug. 28, 2020).

[4] State’s Notice of Motion and Motion for Expert Disclosure Deadlines, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Aug. 28, 2020).

[5] Chauvin’s Notice of Motions and Motions To Change Venue and Reserve Ruling, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Aug. 28, 2020); Lane’s Notice of Motion and Motion To Change Venue, State v. Lane, Court File No. 27-CR-20-12951 (Hennepin County Dist. Ct. Sept. 8, 2020);  Thao’s Notice of Motion and Motion for Change of Venue, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County Dist. Ct.Aug. 28, 2020); Defendant Kueng Moves for Dismissal and Change of Venue in George Floyd Case, dwkcommentaries.com (Aug. 28, 2020).

[6] Thao’s Notice of Motion and Motion To Sequester Jurors, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County Dist. Ct.Aug. 28, 2020).

[7]  Court Denies Ex-Officer Kueng Motion To Remove County Attorney from George Floyd Criminal Case, dwkcommentaries.com (Aug. 7, 2020).

[8] Kueng’s Notice of Additional Evidence, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County Dist. Ct. Aug. 27, 2020).

[9] Thao’s Motion to Compel Disclosure, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County Dist. Ct.Aug. 24, 2020); Chauvin’s Notice of Motion and Motion for Disclosure, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Aug. 28, 2020).

[10] See these posts to dwkcommentaries.com: Ex-Officer Lane Moves for Dismissal of Criminal Charges for George Floyd Killing (July 9, 2020);  Comment: Prosecutors Oppose Ex-Cop Thomas Lane’s Dismissal Motion (Aug. 12, 2020); Prosecution Opposes Lane’s Dismissal Motion (Aug. 21, 2020); Lane’s Reply to Prosecution’s Opposition to Dismissal of Complaint (Aug. 22, 2020); Ex-Officer Thao Moves for Dismissal of Criminal Charges for George Floyd Killing  (July 30, 2020); Defendant Thao’s Dismissal Motion (Aug. 25, 2020); Prosecution Opposes  Defendant Thao’s Dismissal Motion for George Floyd Killing (Aug. 27, 2020); Defendant Kueng Moves for Dismissal and Change of Venue in George Floyd Case (Aug. 28, 2020); Chauvin Motion To Dismiss Criminal Complaint (Sept. 9, 2020).

[11] State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County Dist. Ct. Sept. 8, 2020); Exhibits to State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County Dist. Ct. Sept. 8, 2020). See generally List of Posts to dwkcommentaries–Topical: George Floyd Killing.