Chauvin Appellate Brief Regarding State Court Conviction for Murder of George Floyd

On April 25, 2022, attorneys for Derek Chauvin submitted a brief in support of his appeal to the Minnesota Court of Appeals from his conviction and sentencing by the state District Court for his involvement in the death of George Floyd.

Chauvin’s Brief for the Appeal[1]

Here are the principal points of Chauvin’s brief:

  • The pervasive prejudicial publicity, jurors’ concerns for their safety if they did not convict Chauvin and physical threats to the courthouse required the court to change venue, continue the trial, or fully sequester the jury and its failure to do so violated Minnesota Rule of Criminal Procedure 25.02 and the U.S. Constitution’s 6th and 14th
  • More specifically, the pretrial publicity surrounding the case, which was pervasive and overwhelmingly hostile to Chauvin and law enforcement in general, combined with the riots, the threat of violence from a possible acquittal, the City of Minneapolis’ announcement of its $27 million settlement of claims by the Floyd family in the middle of jury voir dire, jurors’ express concerns for their own personal safety and at least two jurors expressing negative views of the Minneapolis Police Department, the media’s spying on the attorneys and disclosing courthouse security measures required the court to change venue, continue the trial or fully sequester the jury, and its failure to do so violated Minnesota Rule of Criminal Procedure 25.02 and the U.S. Constitution’s 6th and 14th Amendments.
  • The third-degree murder charge against Chauvin, for which he was convicted, must be dismissed because his actions were directed only against one person—George Floyd—and because the Minnesota Supreme Court has decided that such a charge requires actions against more than one person.
  • The second-degree felony-murder charge against Chauvin was invalid because as a police officer he was authorized to “touch” or “assault” Floyd as he resisted arrest and because the court did not instruct the jury that the reasonable use of force by a police officer must be judged from the perspective of a reasonable officer on the scene.
  • The trial court also erred by allowing cumulative evidence by seven expert witnesses on their opinions on the reasonable use of force by Chauvin.
  • The court improperly excluded evidence of MPD training materials showing a police officer placing his or her knees on a suspect’s back.
  • The court erroneously excluded testimony by Morries Hall, a passenger in Floyd’s car, on Floyd’s ingestion of fentanyl and being in a state of excited delirium.
  • The court erroneously failed to take actions to correct prosecutorial misconduct regarding failure to timely disclose certain evidence.
  • The court erroneously failed to make a record of defense counsel’s “sidebar” arguments.
  • The court erroneously used Chauvin’s alleged abuse of a position of authority as an aggravating sentencing factor to justify an upward departure from the presumptive sentencing range.

We now await the prosecution’s responses to these arguments.

Chauvin’s Guilty Plea to Federal Criminal Charges Over Floyd’s Death[2]

Presumably the prosecution will find counter arguments in Chauvin’s December 15, 2001, guilty plea in federal court to two counts of depriving Mr. Floyd of his federally-protected civil rights by pinning his knee against Mr. Floyd’s neck  and by failing to provide medical care for him on May 25, 2020, ultimately causing his death.

In the Plea Agreement and Sentencing Stipulations in that federal case, which Chauvin signed and stipulated that he “fully understands the nature and elements of the crimes with which he has been charged  [in that federal case]” and “admits that the following facts are true, and that those facts establish his guilt beyond a reasonable doubt [to those charges].”

  • Chauvin “held his left knee across Mr. Floyd’s neck, back, and shoulder, and his right knee on Mr. Floyd’s back and arm. As Mr. Floyd lay on the ground, handcuffed and unresisting, [Chauvin] kept his knees on Floyd’s neck and body, even after Mr. Floyd became unresponsive. This offense resulted in bodily injury to, and the death of, George Floyd.”
  • “On May 25, 2020, [Chauvin] was on duty and acting under color of law as a patrol officer for the [MPD]. Through his experience as an MPD patrol officer, [Chauvin] was familiar with MPD policies and training regarding the authorized use of force, including the requirement that an officer use force only in proportion to a subject’s resistance and the requirement that an officer stop using force when a subject is not resisting. . . . [Chauvin] was also aware of MPD policy and training that once an arrestee is in custody, the arrestee is the officer’s responsibility to protect, and accordingly, officers are required to provide emergency medical aid to an arrestee who needs it, including CPR immediately if there is not pulse and other basic first aid, even while awaiting Emergency Medical Services (EMSA). Finally, [Chauvin] was trained that if an arrestee is in the prone position, that position may make it more difficult to breathe, and thus, officers should move that arrestee to a side recovery or seated position.”
  • “After an attempt to seat Mr. Floyd in a squad car, [Chauvin] and Officers Kueng and Lane maneuvered Mr. Floyd, who was handcuffed and requesting to be placed on the ground, out of the vehicle and face-down on the street. Mr. Floyd remained restrained, prone and handcuffed on the ground for approximately ten minutes. During this entire period, [Chauvin] held his left knee on Mr. Floyd’s neck, back, and shoulder area and his right knee on Mr. Floyd’s left arm and upper back.”
  • “After the initial restraint, Mr. Floyd stopped resisting officers. [Chauvin] admits that no later than the time the officers decided not to apply the hobble to Mr. Floyd, [Chauvin’s] continued use of force became objectively unreasonable and excessive based on a totality of the circumstances. After that point, [Chauvin] continued his unreasonable restraint of Mr. Floyd until after the paramedics arrived.”
  • “[Chauvin] admits that in using this unreasonable and excessive force, he acted willfully and in callous and wanton disregard of the consequences to Mr. Floyd’s life. [Chauvin] knew that what he was doing was wrong, in part, because it was contrary to his training as an MPD officer. [Chauvin] chose to continue his use of force even though he knew from MPD policy and training that once Mr. Floyd was compliant, [Chauvin] should have gotten off of him and moved him into a side recovery or seated position.”
  • “[Chauvin] also knew there was no legal justification to continue his use of force because he was aware that Mr. Floyd not only stopped resisting, but also stopped talking, stopped moving, stopped breathing, and lost consciousness and a pulse. [Chauvin] chose to continue applying force even though he knew Mr. Floyd’s condition progressively worsened. [Chauvin] also heard Mr. Floyd repeatedly explain that he could not breathe, was in pain, and wanted help.”
  • “[Chauvin] knew that what he was doing was wrong-that continued force was no longer appropriate and that it posed significant risks to Mr. Floyd’s life based on what he observed and heard about Mr. Floyd.”
  • “[Chauvin] also willfully violated Mr. Floyd’s constitutional right not to be deprived of liberty without due process of law, which includes an arrestee’s right to be free from a police officer’s deliberate indifference to his serious medical needs. [Chauvin] admits that he failed to render medical aid to Mr. Floyd, as he was capable of doing, and trained and required to do.”
  • “At the time [Chauvin] failed to render medical aid to Mr. Floyd, [he] saw Mr. Floyd lying on the ground, in serious medical need, and eventually unconscious and pulseless, and recognized Mr. Floyd was in clear need of medical aid. At no point during the entire period that Mr. Floyd was on the ground did [Chauvin] or anyone else move Floyd onto his side, start CPR, or provide medical aid of any kind to Mr. Floyd. [Chauvin’s] failure to render medical aid resulted in Mr. Floyd’s bodily injury and death.”
  • “[Chauvin] agrees that the appropriate base offense level is second-degree murder because he used unreasonable and excessive force that resulted in Mr. Floyd’s death, and he acted willfully and in callous and wanton disregard of the consequences to Mr. Floyd’s life. [Chauvin] admits that his willful use of unreasonable force resulted in Mr. Floyd’s bodily injury and death because his actions impaired Mr. Floyd’s ability to obtain and maintain sufficient oxygen to sustain Mr. Floyd’s life.”

Conclusion

Given these express written admissions by Chauvin, why is it necessary for the Minnesota Court of Appeals, the Minnesota Attorney General’s Office and Chauvin’s attorneys to go through the intensive and costly process of examining the various issues in Chauvin’s appeal of his state court conviction and sentencing?

This blog welcomes comments expressing why such efforts are necessary.

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[1] Appellant’s Brief, State v. Chauvin, Minn. Ct. Appeals, No. A21-1228 (April 25, 2022); Assoc. Press, Chauvin appeals murder conviction for killing George Floyd, StarTribune (April 28, 2022); Chappell, Derek Chauvin appeals his conviction for George Floyd’s murder, MPRNews (April 27, 2022); Scully, Derek Chauvin asks court to  overturn conviction in George Floyd killing, The Hill (April 27, 2022); Wolfe & Rose, Derek Chauvin appeals his murder conviction in death of George Floyd, CNN.con (April 27, 2022).

[2] Derek Chauvin Pleads Guilty to Federal Criminal Charges Over Killing George Floyd, dwkcommentaries.com (Dec. 16, 2021); Plea Agreement and Sentencing Guidelines (pp. 2-6), U.S. v. Chauvin, U.S. Dist. Ct., D. MN (Case No. 21-CR-108 (PAM-TNL) (Dec. 15, 2021). The federal court’s Docket Sheet for this case has the following entries, but the referenced documents are currently not available to the public: (a) 4/1/22 entry for erroneous filing of transcript of 12/15/21 Change of Plea Hearing; (b)  4/5/22 entry for filing of corrected version of that transcript; and (c) 4/27/22 entry for Preliminary Presentence Report on Chauvin.

 

 

Hennepin County District Court Enters Order Regarding Trial of Three Former Minneapolis Policemen Over Killing of George Floyd 

On April 25, 2022, Hennepin County District Court Judge Peter A. Cahill issued the Trial Scheduling and Management Order and Memorandum Opinion regarding the June 13, 2022, commencement of the trial of three former Minneapolis policemen (Tou Thao, Thomas Kiernan Lane and J. Alexander Kueng) over the killing of George Floyd on May–, 2020.[1]

Trial Management Order

  1. Specified information about any expert witnesses not previously disclosed shall be submitted by May 1, 2022.
  2. Motions in limine shall be submitted by May 13, 2022, with supporting memoranda by May 20 and responsive memoranda by June 3.
  3. Trial witness lists shall be submitted by May 13, 2022.
  4. Trial exhibit lists and proposed jury instructions shall be submitted by June 10, 2022.
  5. Trial will commence at 9:00 a.m. on June 13, 2022, in Hennepin County Courtroom C-1856.
  6. Limits at trial on the number and conduct of the parties’ attorneys or support staff were specified.
  7. Limits at trial on the number and conduct of spectators at trial for the Media Coalition and the George Floyd and defendants’ families were specified.
  8. Hearing on motions in limine or administrative matters will be heard on June 13, 2022, and, if necessary, on subsequent days.
  9. Jury selection will begin on June 14, 2022.
  10. Jurors and potential jurors shall be partially sequestered.
  11. Opening statements and presentation of evidence will begin on July 5, 2022.
  12. Witnesses, prior to testifying, shall be sequestered.
  13. Audio and video recording and livestreaming of the trial will not be allowed except as expressly permitted by Minn. R. Gen. P. 4.02(d).
  14. At least three overflow courtrooms with audio and video feed from the trial courtroom will be provided for family members of George Floyd and the defendants, the media and the public.

The Court’s Memorandum Opinion

The last 27 pages of this Court document set forth the legal bases for the following conclusions:

  • The Minnesota Rules of Practice Do Not Currently Authorize Livestreaming of Trials Over the Objection of a Party;
  • The Unusual and Compelling Circumstances of the Covid-19 Pandemic at the Time of the Chauvin Trial Have Substantially Abated and the Supreme Court Rules in Force in the First Half of 2021 Mandating Social Distancing, Mask Wearing, and Other Precautionary Measures Due to the Covid-19 Pandemic Are No Longer in Force, Obviating Resort to Rule 1.02;
  • This Court Now Is Precluded by Rule 4.02(d) from Ordering Livestreaming of the Trial Over Objections of the Defendants; and
  • Partial Jury Sequestration Is Appropriate.

Reactions [2] 

An attorney for the Media Coalition, which wanted livestreaming of the trial, said that this order was “deeply disappointing [because] thousands of people interested in this important trial won’t be able to watch it. The court’s decision is based on its view that, with the world returning to normal after the pandemic, it must revert to Supreme Court rules that require everyone involved to consent to cameras before they are allowed. The defendants don’t consent. Our Supreme Court needs to change the rule. They are working on it. I wish they could have worked faster.”

Minnesota Assistant Attorney General, Matthew Frank, in a motion before the issuance of this order, said that prohibiting a livestream after allowing one during Chauvin’s trial could harm public confidence in the process. “In the public’s mind, this trial and Chauvin are linked. If this court eliminates audio-visual coverage at this late hour, the broader public may receive the unintended message that they no longer have the right to observe proceedings.”

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[1] Trial Scheduling and Management Order and Memorandum Opinion, State v. Thao, Lane & Kueng, Hennepin County District Court files 27-CR-20-12949, 27-CR-20-12951, 27-CR-20-12953 (April 25, 2022).

[2] Mannix, Judge: Trial of 3 ex-Minneapolis police officers in George Floyd death won’t be livestreamed, StarTribune (April 26, 2022); Karnowski (AP), Trial of 3 ex-officers in Floyd death won’t be livestreamed, StarTribune (April 26, 2022).

Federal Criminal Trial for Killing George Floyd: Jury Deliberations and Verdict

On February 23, U.S. District Court Judge Paul Magnuson gave the Court’s instructions to the jury, and the jury engaged in their deliberations for the rest of the day and most of the next day. On the afternoon of February 24, the jury rendered its verdict. [1]

                                                     Jury Instructions

The Judge told the jurors they must view the evidence in light of what a “reasonable officer at the scene” would have done “without the benefit of 20-20 hindsight” and then “determine whether the decision to use force on Floyd was reasonable under the circumstances that were tense and rapidly evolving.” 

Moreover, “it violates the Constitution for a police officer to fail to intervene if he had knowledge of the force and an ability to do so.” 

On each count, if the jurors find an officer guilty, they must determine whether the officer’s actions caused Floyd’s death. (If the jury so finds, longer sentences would be permissible.)

                                                        Jury Verdict [2]

On the afternoon of February 24, after total deliberations of 13 hours over two days, the jury rendered its verdict that all three defendants were guilty of all charges.

                                            Reactions to the Verdict [3]

Afterwards, Assistant U.S. Attorney LeeAnn Bell said, “[A]s one of the brave bystanders said, ‘George Floyd was a human being.’ He deserved to be treated as such.”

George Floyd’s brother, Philonise Floyd, said, “This is something we want everybody to remember: If you kill somebody, you’re going to get time.”

Minnesota Attorney General Keith Ellison stated, “Once again, the principle that no one is above the law and no one is beneath it has been upheld. The verdicts vindicate the principle that officers have a duty  and a responsibility to intervene and recognize when a fellow officer is using excessive force.”

Christy E. Lopez, a professor at Georgetown University Law Center and an expert on police training, commented that this verdict “could significantly change law enforcement culture, compelling agencies to make sure that officers are properly trained and are upholding their duties. It shifts the entire narrative from misconduct being about just acts of commission to misconduct also being about acts of omission.” [4]

Other experts noted that “this case focused on a more widespread problem than a single officer’s act of violence: the tendency of officers to stand by when they witness a fellow officer committing a crime.”

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[1] Olson & Mannix, Jury wraps first day of deliberating federal civil rights case against 3 ex-Minneapolis officers in George Floyd death, StarTribune (Feb. 23, 2022); Bogel-Burroughs, Jurors to Weigh Fate of Officers Who Restrained George Floyd as He Died, N.Y. Times (Feb. 22, 2022).

[2]Olson & Mannix, Ex-Minneapolis officers guilty on all civil rights charges related to George Floyd’s death, StarTribune (Feb. 24, 2022); Former Minneapolis Police Officers Found Guilty of Violating George Floyd’s Civil Rights, W.S.J. (Feb. 24, 2022); Former Minneapolis officers found guilty of violating George Floyd’s civil rights, Wash. Post (Feb. 24, 2022).

[3] Walsh, Reaction to guilty verdicts ranges from proper police accountability to worries of chilling effect on cops, StarTribune (Feb. 24, 2022); Arango, Bogel-Burroughs & Senter, 3 Former Officers Are Convicted of Violating George Floyd’s Civil Rights, N.Y. Times (Feb. 24, 2022).

[4] See Importance of Pending Federal Criminal Case Over Killing of George Floyd, dwkcommentaries.com (Jan. 24, 2022)(discussion of Professor Lopez’ work on police training), https://dwkcommentaries.com/2022/01/24/importance-of-pending-federal-criminal-case-over-killing-of-george-floyd/

 

Federal Criminal Trial for George Floyd Killing: Prosecution Witnesses (Part I)

Here is a summary of the testimony of prosecution witnesses on January 24-28, 31 and February 1-2. On February 2 at 10:00 a.m. the trial was recessed until Monday, February 7, 9:30 a.m. because Defendant Thomas Lane has COVID.[1]

Kimberly Meline.

As the first trial witness, Meline established foundation for various videos of the police encounter with George Floyd on May 25, 2020, near Cup Foods in south Minneapolis. This included synchronizing some videos to play side by side.

A 34-minute video showed officers Kueng and Lane walking into Cup Foods and then walking to the car outside where Floyd is at the steering wheel. Lane points his gun at him and asks him to put his hands on the steering wheel. He does not comply and one of the officers says, “When you’re moving around like that, that makes us think way more is going on than we even know.”

This video then shows Lane and Kueng cuff Floyd and take him to a squad car and try to put him inside. Floyd objects, “I’m not that kind of guy. I’m claustrophobic.” He also says “I can’t breathe.” After Floyd is placed on the pavement near a police vehicle, the video captures him saying, “I can’t breathe. Mama, I love you.”

Another video, this from Kueng’ body-worn camera, was fixed on the passenger-side rear tire of a squad car, as bystanders can be heard shouting from the sidewalk and Floyd is unresponsive. A bystander, Donald Williams, says, “You think that’s cool, bro? You’re a bum for that.” This video also shows Thao holding back a group of bystanders on the sidewalk.

Charles McMillian

McMillian, a 71-year -old neighbor, was the first witness on the scene on May 25, 2020, and told Floyd to get in the back of the squad car and make it easy on himself because “You can’t win.” With tears, McMillian said, “I knew something bad was going to happen to Mr. Floyd . . . that he was going to die.”

Jena Scurry

A 911 dispatcher, Scurry testified that the officers asked for a “Code 2” ambulance without lights and sirens for a “mouth injury.” They did not report that Floyd was having trouble breathing. If they had, she could have sent “rescue” medical help from the fire department which could get to the scene faster than from Hennepin County EMS. A few minutes later she “grew concerned” that the officers appeared so long on a city surveillance camera that she called and reported this to a Third Precinct sergeant

Christopher Martin

At 19 years of age, Martin was working the evening shift at Cup Foods in May 2020 and accepted a blue-hued, obviously counterfeit $20 bill from Floyd to pay for a pack of cigarettes. At the instruction of the store manager, Martin went outside to bring Floyd back inside. Floyd, he testified, looked high and did not want to return to the store so the manager had another employee call 911.

A few moments later Martin saw a crowd outside the store and went outside to see a police officer with his knee or his body weight on Floyd’s neck, who appeared “dead . . . not moving.”

Derek Smith

A paramedic for Hennepin Healthcare, Smith testified that he and his partner arrived at the scene on a Code 2 non-emergency call. He immediately noted that Floyd had large pupils, no pulse and a chest not rising and falling and then told his partner “I think he’s dead. I’d like to provide patient care away from the scene” because “I knew I would have to work cardiac arrest, probably taking off his clothes.” They removed the body to the ambulance and started to set up lifesaving equipment while officer Lane attempted CPR. Yes, Lane was helpful to the paramedics.

Genevieve Hansen

An off-duty Minneapolis firefighter, while on a walk, Hansen came upon the scene near Cup Foods on May 25, 2020, and observed the lights of a squad-car,  “a woman was yelling that they were killing him” and “the amount of people that were on top of one person.” She also noticed “there were no medics or fire [department personnel] there, so there was no medical attention available.” The man on the ground wasn’t moving, his face was really swollen and smashed to the ground. She saw fluid coming from his general body and thought he could have emptied his bladder, which” is a sign of death or near death.” (Later, she says she learned the fluid was runoff from vehicle exhaust.) She was “concerned that he needed help.”

Hansen offered to help and urged one of them (Thao) to check the man’s pulse only to be rebuffed and told to get back on the sidewalk. This officer said something like, “If you’re really a Minneapolis firefighter then you should know better than to get involved.” This prompted Hansen to yell and swear at the officers because the man on the ground needed help immediately and he wasn’t not getting it, so I was just trying everything.”

Jeremy Norton

Norton, a Minneapolis fire captain, arrived at the scene to provide EMS and heard someone yell, “You all killed that man,” to the officers. In the Cup Foods store Norton met and talked with Hansen, who said she thought the officers had killed Floyd. Yet Norton said the officers did not seem concerned. In response to a question by Robert Paule, Thao’s attorney, about “excited delirium,” Norton said it was part of firefighters training, but the American Medical Association had concluded that it lacked scientific evidence as a legitimate diagnosis.

At the end of the day on the 26th, Plunkett for the third time called for a mistrial, but the Judge denied the motion while telling the prosecution to be careful with leading questions.

Katie Blackwell

As a Police Department Inspector, Blackwell oversees training, which includes a medical component and scenarios officers may face in the field. MPD core values: trust, accountability and professional service. The Field Training Handbook asserts these values: (1) public safety and justice, not just absence of crime; (2) being truthful; (3) holding each other accountable; and (4) not committing public or private conduct that would sully the department.” Phases of training: (1) being in the field with a field training officer, getting comfortable with the public and computer system; and (2) being in a different precinct with a different field training officer.

MPD Code of Conduct: all employees to obey the code of conduct, rules, ordinances, laws. “The integrity of police service is based on truthfulness.” Other sections talk about being fair, unbiased and professional. “Required to immediately report any violation of rules, including but not limited to unreasonable use of force—regardless of rank.” Use of force starts with police presence and escalates to use of force. Use the lowest level of force necessary to detain someone. Once there is compliance, force stops. “Sanctity of life and protection of the public should be the cornerstones of MPD’s use of force policy.” If a person has stopped resisting, the person is complying. This includes protecting persons suspected of violating the law from police use of unnecessary force. Officers have a duty “to stop or attempt to stop another officer when force is being inappropriately applied or is no longer required.”

The Department’s officers have “a duty to intervene because there is an obligation for sanctity of life to protect the public and fellow employees.” This includes a “duty to “stop or attempt to stop” another officer ”when force is being inappropriately applied or is no longer required.” It also includes “rendering medical aid consistent with training, including CPR, chest seal/tourniquet, administering Narcan, checking breathing. These requirements take into consideration an individual’s medical conditions, mental impairment, developmental disability, physical limitations, language barriers, drug or alcohol use and behavioral crisis.

MPD policy defines neck restraint as “restricting the blood flow” and “chokehold” can be used before shooting someone. Although policy says “neck restraint” can be used with a leg, officers are not trained to do so. “Conscious neck restraint” can be used when someone is actively resisting arrest and usually takes 15 seconds. Hobble is used to prevent someone from kicking and being combative. Prone position sometimes is used to get someone handcuffed, but then turn the person on his or her side so they can breathe easier.

“Sanctity of life and protection of public shall be the cornerstones of the MPD’s use of force policy. No matter what kind of force we’re using, we have to protect people.” “MPD employees shall only use the amount of force ‘objectively reasonable’ in light of circumstances: the amount and type of force that would be considered rational and logical to an objective officer on the scene, supported by facts and circumstances known to an officer at the time the force was used.”  Force can be used for “lawful arrest, execution of legal process, enforcing order of court, legal duties.”

MPD crisis intervention policy requires police to treat vulnerable people with compassion. Must call EMS and “render first aid until EMS gets there.” MPD policy for police to not stop people from videotaping police events.

Blackwell worked with Chauvin at third precinct for many years.

Blackwell reviewed Thao’s 2018 training–“Defensive Tactics In-Service.” It said, “Sanctity of life and protection of public. Based on 4th amendment reasonableness standard. Restraint is a form of force. Proportional force based on what the subject is doing. Need to use lowest level of force and justify any use of higher level.” Use of force: active aggression (being combative or trying to assault), active resistance, passive resistance and flight.

MPD academy tries to get officers comfortable correcting one another. “You will be held responsible for your actions and inactions.”

Blackwell also testified that the first officers on the scene, Lane and Kueng, under MPD policy, were in charge of the scene and should not have deferred to Chauvin, especially when Chauvin violated policy by putting his knee on Floyd’s neck and not removing it as Floyd was gasping for air and ultimately dying.

Initially Floyd showed active resistance and aggression when officers were trying to put him in back seat of squad car, which would have justified the officers using a taser on him.

Chauvin’s actions were inconsistent with policy when he had his knee on Floyd’s neck and pulled on his hand for “pain compliance.”

Three of the four officers who arrested and restrained Floyd did not act in accordance with use-of-force policy. Officers were not really communicating with each other. When Floyd went unconscious they were supposed to move him, but did not do so. Lane held Floyd’s legs. They did not move Floyd on his side as they were supposed to. Lane suggested doing so, but no one did so. When Floyd went unconscious, officers were supposed to render aid, but they did not do so. When Floyd had no pulse, they were supposed to perform medical aid, but they did not do so. MPD policy requires an officer to intervene to stop use of inappropriate force. The three officers failed in their duty to intervene.

There was a crowd of bystanders, but they were on sidewalk following orders and were not posing any threat to the officers.

Plunkett cross-examination: Blackwell disagrees with assertion that senior leadership establishes culture of organization and training. Instead recruits should mirror in field what they learned in training. Policy manual has 537 pages, and officers are supposed to know it. There are annual tests of some parts. DOJ is investigating pattern and practice of MPD, including alleged deficiency in officer training.

Paule cross-examination. The attorney for ex-officer Thao, Robert Paule, got Blackwell to agree that a MPD training slideshow cited a draft report by the city’s civil rights division that found a sharp rise in ketamine injections of detainees and examples of police asking emergency medical services for the sedative by name and joking about its powerful effects along with a footnote dismissing the report as a “reckless use of anecdote” that will “prevent the saving of lives.” Blackwell also testified, “If you’re dealing with somebody who is displaying signs of excited delirium, it can be very dangerous.”

Paule also identified other slides from the MPD course on its “excited delirium” training that had officers pinning down suspects with their knees, similar to the way Chauvin pinned down Floyd.

Dr. Bradford Wankhede Langenfeld

Langenfeld went into stabilization room for most critical patients to await Floyd’s arrival as a cardiac arrest patient. Floyd arrived at 8:55 p.m. Upon arrival, paramedics said no one at scene had started CPR before they arrived, and a minute’s delay in CPR reduces chances of success from cardiac arrest by 10-15%. But paramedics in ambulance tried resuscitation for about 30 minutes before arrival at hospital, but never found a pulse.

At hospital they continued compressions with Lucas device and gained additional IV access for more medications. Replaced windpipe tube with a more secure tube for better venting and arterial line. Dr. Langenfeld believes most likely cause of this cardiac arrest was “mechanical asphyxia” (inability to expand chest wall) and “excited delirium” or “severe agitated state.” There was a mouth injury which made him think the patient had been pinned down in prone position. Fentanyl by itself is a depressant, shows down breathing, but would not lead to severe agitated state.

After Dr. Langenfeld had worked on Floyd for about 30 minutes, cardiac arrest had come to near standstill; no clinical improvement; so doctor declared Floyd dead. When the heart stops, tissues and brain start to die, and irreversible brain damage occurs within 4-6 minutes of cardiac arrest.

Cross-examination by Paule (Thau’s attorney). Dr. Langenfeld says excited delirium is controversial because it is used almost exclusively when law enforcement is restraining an individual and predominantly people of color, thus raising concerns about bias and most often it is a pre-hospital diagnosis, which is condemned by  AMA and which typically is used for someone who is delirious, erratic, unable to be verbally de-escalated, sweaty.

If Floyd had been using illegal drugs and sweating profusely, this possibly could have been cause of cardiac arrest.

Cross examination by Plunkett (Kueng’s attorney). If someone had consumed methamphetamine and fentanyl and then was struggling hard, that possibly could kill someone.

Redirect by prosecution. Cardiac arrest from acidosis can be reversed by prompt chest compressions and CPR ventilation. After reviewing video of Floyd’s arrest, Dr. Langenfeld believes Floyd was not subject to severe agitation that would lead to cardiac arrest.

Andrew Baker

A medical examiner, Baker examined Floyd at HCMC and testified that his heart and lungs stopped due to restraint by law enforcement. “ I view his death as being multifactorial” due to the duration of his “interaction with law enforcement” for 9.5 minutes along with his already enlarged heart and hardened arteries. However, he denied that the fentanyl and methamphetamine found in Floyd’s body and carbon monoxide poisoning were contributory factors.

Under cross examination by attorney Paule, Baker testified that he and his office were targets of protests after Hennepin County Attorney Mike Freeman had published Baker’s preliminary autopsy findings that highlighted Floyd’s cardiovascular disease and “potential intoxicants” in his body. These protests included threatening phone calls, some of which targeted specific employees in his office and their families and included their home addresses. But Baker said the final conclusions on Floyd’s death were neither partisan nor driven by outside pressure. Baker also testified that excited delirium was not a cause of death.

Kueng’s attorney, Thomas Plunkett, showed Baker a photo of Kueng restraining Floyd, and Baker said that that position “wouldn’t impair his ability to breathe.” Baker gave the same answer to a question by Lane’s attorney (Earl Gray) about Lane’s position on Floyd.

Christopher Douglas

Attorney Gray objected to having Douglas testify because he trained Lane as a corrections officer in 2017 and, therefore, is not relevant. The objection, however, was overruled.

Douglas works for the Hennepin County Department of Community Corrections as the lead safety trainer for the County’s Juvenile Detention Center, where Lane worked before joining MPD. Douglas testified regarding the training about positional asphyxia that Lane would have received at that Center in 2017 and 2018. It emphasized getting “control of the subject quickly,” using arms instead of body weight while avoiding putting pressure on the torso and neck and monitoring the subject for medical issues and claiming inability to breathe. The trainees also learn de-escalation and physical restraint techniques, which aim to keep someone vertical and on their feet making it easier to transport someone and less likely to cause injury.

Comment

According to Holly Bailey, a Washington Post reporter, defense cross examination of Katie Blackwell suggests that a major defense argument will be that “Minneapolis officers are not given adequate scenario training on intervention policies and they operate in a militarized environment where younger officers are strongly discouraged from disagreeing with senior officers.” Thomas Plunkett, Kueng’s attorney, has argued that Kueng had received “inadequate training” and that the U.S. Justice Department currently is investigating the MPD, including its training programs.

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[1]  The above summary of witness testimony is based upon the following newspaper articles: Live: Federal trial of 3 former Minneapolis officers in George Floyd death, StarTribune; Mannix & Olson, Cup Foods clerk who interacted with George Floyd tells jurors of events leading to killing, StarTribune (01/25/22);  Olson & Mannix, Day 3 of testimony underway as paramedic describes how George Floyd was likely dead at scene, StarTribune (1/26/22); Mannix & Olson, ‘I think they killed him:’ Off-duty firefighter testifies of futile attempts to help unresponsive George Floyd, StarTribune (1/26/22); Mannix & Olson, Minneapolis police inspector testifies of training protocol in civil rights trial, StarTribune (1/27/22); Mannix & Olson, Kueng and Lane should have been in charge at George Floyd arrest, protocol not followed, StarTribune (1/28/22);  Mannix & Olson, Defense says poor training, paramilitary culture, stopped officer from intervening in George Floyd’s death, StarTribune (1/28/22); Bailey, Officers charged in George Floyd’s killing had been taught to intervene, police trainer testifies, Wash. Post (1/28/22); Jany & Furst, Minneapolis police training, policies under microscope in trial of 3 ex-cops in George Floyd’s death, StarTribune (1/30/22); Mannix & Olson, Testimony: Minneapolis police trained to ignore city’s civil rights report on ketamine, excited delirium, StarTribune (1/31/22); Olson & Mannix, Defense asks medical examiner about outside pressures during George Floyd death investigation, StarTribune (2/1/22); Olson & Mannix, Trial of ex-Minneapolis cops postponed by COVID diagnosis, StarTribune (2/2/22).

Importance of Pending Federal Criminal Case Over Killing of George Floyd

A Professor of Practice at the Georgetown University Law Center, Christy Lopez, asserts that the current federal trial of the three ex-officers for not intervening to prevent the death of George Floyd may be even more important than the state case that convicted Derek Chauvin for murder and manslaughter of Mr. Floyd. She says, although “a duty to intervene to prevent another [police] officer from using unreasonable force has existed for 50 years, it has led to few federal prosecutions for same. [Moreover, the professor has not found any] federal prosecutions of lower-ranking officers for failing to intervene to prevent a higher-ranking—or even a peer officer—from using unreasonable force.” [1]

Reasons for Police Intervention To Stop Excessive Force

According to Professor Lopez,”this trial could set federal precedent for holding officers criminally culpable . . . for failing to prevent another officer — even a peer or superior officer — from committing . . . [civil rights violations]. And that precedent could add momentum to a badly needed sea change in policing — toward a shared expectation that every officer will take all feasible steps to prevent another officer from violating constitutional rights, regardless of rank.”

“It is difficult to overstate the impact such a change culture would have. As I wrote just a few days after Floyd’s death, our central concern should be preventing deaths like his; no after-the-fact measure of accountability can make up for the brutal, unnecessary snuffing out of a human life. Intervention by officers in real time is often the best way — sometimes the only way — to prevent harm.”

“Further, building a culture of intervention is an essential component of broader efforts to transform policing and public safety. When officers stand by while another officer causes needless harm, they commit a separate, in some ways more corrosive, damage: the delegitimizing of police and rule of law that takes hold when abuse committed by bad-apple officers is tacitly condoned by passive bystander officers.”

“[The particular facts of Floyd’s murder underscore the importance of training officers in how to effectively intervene. Turning the legal duty to intervene into routine practice requires building a policing culture that supports active bystandership. Accountability — criminal, civil and administrative — is part of this, but so is demonstrating that officers will be supported when they step in. Training signals that support and increases the likelihood that interventions will be effective — a precursor to intervention becoming the norm. While not having been trained cannot be an excuse to avoid accountability for a failure to intervene, strong training can create a culture in which effective interventions are more likely.”

“Active bystandership programs, such as the one focusing on policing that I helped found at Georgetown Law, teach people to anticipate this reaction and be prepared to overcome it. We use the acronym PACT — for probe, alert, challenge, take action — to help officers remember not only the potential need to ratchet up intervention, but also how to do so. Officers role-play escalating stages of intervention. Imagine if just one of the officers had directly challenged Chauvin (“Take your knee off his neck!”) and, if that didn’t work, taken action to physically remove him.”

“Training cannot guarantee better outcomes, but when good training is bolstered by accountability — like that possible through the trial in St. Paul — it can become a potent component of culture change. Building this culture in policing is essential, not only to prevent tragedies like Floyd’s death but also to stop the everyday violations that steadily erode police legitimacy and that other officers are often the only ones in a position to prevent.”

Conclusion

Professor Lopez’ opinion deserves serious attention. Before joining the Georgetown faculty in 2017, she served for seven years as a Deputy Chief in the Special Litigation Section of the Civil Rights Division at the U.S. Department of Justice where she led pattern-or-practice investigations of police departments and other law enforcement agencies, including litigating and negotiating settlement agreements to resolve investigative findings. Professor Lopez also helped coordinate the Department’s broader efforts to ensure constitutional policing. Before that she spent 15 years as a lawyer involved in criminal justice reform and constitutional policing. [2]

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[1] Lopez, The officers who didn’t stop Derek Chauvin are on trial. Their prosecution may matter even more than his did, Wash. Post (1/23/22).

[2] Christy E. Lopez Biography, Georgetown Law.

Final Preparations for  Federal Criminal Trial Over Killing of George Floyd 

On January 20 and 21, 2022, U.S. District Court for the District of Minnesota’s Judge Paul Magnuson conducted the final hearings before the criminal trial of three former Minneapolis police officers (Thomas Lane, J. Alexander Kueng and Tou Thao) over their allegedly depriving George Floyd of his liberty without due process and failed to provide the medical attention he so obviously needed.

Jury Selection[1]

In the first day, a jury of 12 Minnesota citizens were chosen as jurors along with six others as alternates from a pool of 67. Of the 12 set to decide the case, five are white men, six are white women and one appeared to be an Asian woman. Of the alternates, three are white women, two are white men and one appeared to be an Asian man. The only black man in the jury pool said he could not be fair and was excused.

Among the 12 main jurors, three are from Hennepin County, two each from Ramsey and Washington Counties and one each from Anoka, Blue Earth, Olmstead, Jackson and Scott Counties. Two of the  alternates are from Ramsey County while the others come from Anoka, Hennepin, Nicollet and Olmstead Counties.

All of this was accomplished in only one day because Judge Magnuson conducted all of the questioning of the jury candidates and ruled on objections by counsel for the parties. The Judge started with general statements and questions, including whether the prospective jurors could be fair, impartial and believed in the presumption of innocence. He advised them that Chauvin’s convictions had nothing to do with the guilt or innocence of the three defendants, saying their actions were “totally separate.” The Judge also advised the potential jurors that community difficulties and “anarchy in the streets” may have an impact, but “fear cannot control in a courtroom” and that the case has “unequivocally nothing to do with race … religion … or national origin.”

Cancelled Hearing on Other Issues[2]

On January 21, the Court had planned a closed hearing on defense objections to some of the prosecution’s proposed evidence, including still images from the videos of the May 25, 2020 killing of Mr. Floyd, side-by-side exhibits that will play two videos at once and dispatch and 911 calls.

But after the prosecution and the Media Coalition objected to the closing of the hearing, the Judge cancelled the hearing.

The Judge also  increased the seats in the courtroom for journalists from two to four.

Conclusion [3]

On Monday (January 24), the trial is scheduled to commence with the attorneys’ opening statements.

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[1] Mannix, Federal Trial for 3 ex-officers in George Floyd death will differ from Derek Chauvin’s state trial, StarTribune (1/20/22); Olson & Xiong, Jury is seated in federal trial for the other officers in George Floyd death, StarTribune (1/20/22);  Bailey, Another trial in the killing of George Floyd for other officers at the scene, Wash. Post (1/20/22).

[2] Karnowski & Forliti (AP), Access again an issue at federal trial in Floyd’s killing, StarTribune (1/21/22).

[3] Mannix & DeLong, What you need to know about the federal trial of three ex-Minneapolis police officers in George Floyd’s death, StarTribune (1/21/22). See also posts listed in the “Federal Criminal Cases Against Ex-Minneapolis Policemen Over the Killing of George Floyd and Against Derek Chauvin Over Excess Force Against Teenager” section of List of Posts to dwkcommentaries—Topical: George Floyd Killing.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As previously noted, four Minneapolis policeman—Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thao–face a federal grand jury indictment over the death of George Floyd in the District of Minnesota. They are charged with  allegedly using the “color of the law” to deprive  George Floyd of his constitutional rights to be “free from the use of unreasonable force” when Chauvin held Floyd down by the neck for more than nine minutes while the others did nothing to stop Chauvin. In addition, all four are charged with failing to help provide medical care to Floyd and “thereby acting with deliberate indifference to a substantial risk of harm.” [1]

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

Denial of Severance of the Four Cases

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

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

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

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

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

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