Court Sustains Most Charges in George Floyd Criminal Cases  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

 

 

 

 

 

 

 

 

 

 

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.

 

Chauvin Moves To Dismiss Criminal Complaint 

On August 28, former Minneapolis police officer Derek Chauvin filed a motion to dismiss the criminal complaints against him.[1] Here is a summary of this motion.

Dismissal of Count I–Second Degree Unintentional Murder

 Count I of the Amended Complaint alleges Chauvin is guilty of Second Degree Unintentional Murder by reason of his allegedly committing a Third Degree Assault. But it does not even “allege that Mr. Chauvin possessed the intent to inflict bodily harm upon Mr. Floyd.” And “the State has offered no evidence to support the intent element of third-degree assault.” (Chauvin Memo at 9.)

Instead, the evidence shows that Floyd “was struggling in and around the squad [car] at a busy Minneapolis intersection. He was handcuffed and acting erratically. Continued struggle posed a risk of injury to Mr. Floyd and, potentially, to officers. The decision to use MRT allowed officers to restrain Mr. Floyd without injury until EMS arrived on scene. Mr. Chauvin, who arrived at the scene as officers were already struggling with Mr. Floyd, checked to ensure that EMS had been called.” (Id. at 9-10.)

“The Medical Examiner found no bruising on Mr. Floyd’s neck or on any neck muscles or any injury to neck structures. There was no bruising on Mr. Floyd’s back or evidence of blunt trauma to his back. If Mr. Chauvin had intended to inflict harm to Mr. Floyd’s back and neck with his knee, surely there would be evidence of bruising. But clearly, Mr. Chauvin was cautious about the amount of pressure he used to restrain Mr. Floyd—cautious enough to prevent bruising. Video evidence shows Mr. Chauvin was calm and professional throughout the application of MRT” or Maximal Restraint Technique that was a technique approved by the Minneapolis Police Department. (Id. at 10.)

Dismissal of Count II–Third-Degree, Depraved Mind Murder

“Count II of the Amended Complaint charges Mr. Chauvin with Third Degree Murder— Perpetrating Eminently Dangerous Act and Evincing Depraved Mind, in violation of Minn. Stat. § 609.195(a). Under Minnesota law, however, ‘[d]epraved mind murder cannot occur where the defendant’s actions were focused on a specific person.’ State v. Barnes, 713 N.W.2d 325, 331 (Minn. 2006) (citing State v. Wahlberg, 296 N.W.2d 408, 417 (Minn. 1980)).” (Id. at 11.)

“As the Minnesota Supreme Court has explained, ‘We have made clear that the statute covers only acts committed without special regard to the effect on any particular person or persons.’ State v. Zumberge, 888 N.W.2d 688, 698 (Minn. 2017). ‘[T]he act must be committed without a special design upon the particular person or persons with whose murder the accused is charged.’ Id. (appellant’s claims that he shot “toward” not “at” the decedent precludes a third degree murder instruction) (citation omitted). Third degree murder is reserved to cover cases where the act was ‘reckless or wanton,’ such as firing a gun into a bus or driving a vehicle into a crowd. Wahlberg, 296 N.W.2d at 417. That is simply not the case here.” (Id. at 11.)

Dismissal of Count III—Culpable Negligence Manslaughter

 This charge requires proof of the actor’s “objective gross negligence” and “subjective recklessness.” (Id. at 12.)

Under Minnesota cases, “objective gross negligence” is an act that was “a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.” Here, Chauvin as a police officer in an emergency situation under Minnesota case law had ‘significant independent judgment and discretion’ . . . ‘precisely because a more stringent standard could inhibit action.’ (Id. at 12-13.)

Chauvin’s attorney then argues,  “Such discretion often comes into play when an officer must gauge how much force to use in order to effect an arrest. The amount of force authorized is dependent on the subject being arrested, the circumstances of the arrest, and the ever-developing fact pattern of any arrest scenario.” (Id. at 13.)

Here, “Chauvin was acting within his duties to execute a legitimate legal process—assisting other officers with effecting their arrest of George Floyd,” who was actively resisting arrest when Chauvin arrived on the scene. Quoting Minnesota cases, in such cases, an ‘officer may use all necessary and lawful means to make the arrest’ and is authorized “to escalate their use of force, short of deadly force, as necessary.” Here, under MDP policy, the use of MRT was authorized because Floyd was ‘handcuffed, . . .combative and still pose a threat to themselves, officers or others, or could cause significant damage to property if not properly restrained.” (Id. at 14-19.)

Moreover, the evidence shows Chauvin performed the MRT in accordance with MPD training materials and manuals and did not actually and consciously disregard the risks associated with MRT. And the Hennepin County Medical Examiner found no bruising on Floyd’s neck or muscles or neck structures or on his back. (Id. at 14-20.)

Dismissal of All Counts—Chauvin Did Not Cause Floyd’s Death

According to the relevant Minnesota statutes and cases, conviction for homicide requires that ‘the act of the defendant [was] the proximate cause of death of [the victim] without the intervention of an efficient independent force in which the defendant did not participate or which he could not reasonably have foreseen” or that “the defendant’s conduct was a ‘substantial causal factor’ in bringing about the victim’s death.” (Id. at 21.)

Chauvin’s attorney then asserts, “Mr. Chauvin was not the proximate cause of Mr. Floyd’s death, because an ‘independent force’ . . . in which Mr. Chauvin ‘did not participate’ and which ‘he could not reasonably have foreseen’ intervened: Fentanyl.” (Id.)

“It is clear from the evidence that Mr. Floyd was under the influence of narcotics when he encountered the officers and that he most likely died from an opioid overdose. . . . His body contained a lethal dose of fentanyl—[1ng/ml—as well as methamphetamine, at the time of his death.” Indeed, Chauvin quotes the Hennepin County Medical Examiner, Dr. Andrew Baker, telling the prosecutors on June 1, ‘If he were found dead at home alone & no other apparent causes, this could be acceptable to call an OD [overdose].’ [2] But Chauvin’s attorney does not quote the next note: “Baker. I am not saying this killed him.” (Emphasis added.)

Moreover, Chauvin’s attorney does not quote Dr. Baker’s actual autopsy report (5/26/20) that was titled “Cardiopulmonary Arrest complicating Law Enforcement Subdual, Restraint, and Neck Compression” or the County Medical Examiner’s Press Release (05/26/20) with the same statement for “Cause of Death” plus ‘How injury occurred: Decedent experienced a cardiopulmonary arrest while being restrained by law enforcement officer(s)’ and ‘Manner of death: Homicide.’[3]

Also not quoted by Chauvin’s attorney were the June 10 report by the Defense Health Agency concurring with the ‘autopsy findings and the cause of death certificate’ by the Hennepin County Medical Examiner. Or the findings of Dr. Michael Baden and Dr. Allecia Wilson, who were retained by the attorneys for the Floyd family, that found that Floyd ’died of traumatic asphyxia due to the compression of his neck and back during restraint by police’ and ‘Manner of Death’ was ‘homicide.’ State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020).[4]

Chauvin’s attorney admits in this brief that Floyd “told officers that he had suffered from COVID-19.” Moreover, Chauvin arrived at the scene with fellow ex-officer Thao, who testified during an interview by the Bureau of Criminal Apprehension (BCA) and FBI, that when he and Chauvin were driving to join Lane and Keung at the scene they were told on the phone that someone who had appeared to be intoxicated had passed a fake bill at Cup Foods and after arrival Thao had heard Floyd say he had had COVID-19 while he was in the back seat of a squad car before he went to the pavement outside the car and Thao had been worried that Floyd was on drugs.

Chauvin’s attorney boldly states that even though Lane and Keung may have observed signs of Floyd’s overdose and medical trauma, “none of this information was shared with Mr. Chauvin. Therefore, “Chauvin was unaware of the potential dangers of using MRT on Mr. Floyd.” (Chauvin Memo at 25-26 (emphasis in original).) This appears to be an unfounded overstatement of the record.

Conclusion

Given the recent filing of this Chauvin motion, as of noon on September 9, the State had not yet responded to this motion, but clearly it will oppose same before the court considers and rules on the four dismissal motions on the briefs and record.

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[1] Defendant’s Notice of Motions and Motions To Dismiss, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020);  Memorandum of Law in Support of Defendant’s Motion To Dismiss, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Defendant’s Exhibit List in Support of Motion To Dismiss for Lack of Probable Cause, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Hennepin County Medical Examiner’s autopsy report (5/26/20) (Ex. 20),  State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Hennepin County Attorney’s Office memos of interviews of Dr. Andrew Baker (Hennepin County Medical Examiner) on 5/26/20, 5/27/20 & 5/31/20, (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Notes from Hennepin County Attorney’s [6/1/20] interview with Dr. Andrew Baker{Hennepin County Medical Examiner], (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Hennepin County Attorney’s Office summary of communications with Chief Tim Longo, University of Virginia Police Department (5/26/20-6/3/20) (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Defense Health Agency autopsy summary report (6/10/20) (Ex. 19), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020); Summary of autopsies of Floyd by Drs. Baden and Wilson on behalf of Floyd Family (7/2/20) (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020). See also Raice & Ailworth, George Floyd’s Death Likely Caused by Drug Overdose, Argue Derek Chauvin’s Lawyers, W.S.J. (Aug. 28, 2020); Bailey, In new filing, Derek Chauvin previews his defense, but also seeks dismissal of charges, Wash. Post (Aug. 29, 2020); Olson, Chauvin lawyer: Restraint didn’t kill Floyd, ill health and drug abuse did, StarTribune (Aug. 29, 2020).

[2] Chauvin Memo at 22; Hennepin County Attorney’s Office, Notes from Notes from [6/1/20] interview with Dr. Andrew Baker{Hennepin County Medical Examiner], (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020).

[3] Affidavit of Matthew Frank Exs. 4 & 5 (Aug 10, 2020), State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court Aug. 10, 2020).

[4] Summary of Dr. Michael Baden and Dr. Allecia Wilson’s findings (7/2/20), (Ex.6), State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020) (Exs. 6, 19)

 

Ex-Officer Thao Moves for Dismissal of Criminal Charges for George Floyd Killing

On July 29, attorneys for ex-officer Tou Thau filed a motion for dismissal of the criminal charges of aiding and abetting the May 25th killing of George Floyd. The attorneys argue the prosecutors had failed to show that Thao knew that Chauvin and the other officers were going to commit a crime and  that Thao’s presence or actions at the scene were done “to further commission of that crime.”[1]

The prosecution’s response is due August 17 with the hearing on the motion set for September 11. Also to be heard at that hearing is a similar dismissal motion by ex-officer Thomas Lane.[2]

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[1] Furst, Tou Thao seeks dismissal of charges in George Floyd’s killing, StarTribune (July 30, 2020); Assoc. Press, Ex-Minneapolis cop argues for dropped charges in Floyd death, mprnews.org (July 29, 2020).

[2]  Ex-Officer Lane Moves for Dismissal of Criminal Charges for George Floyd Killing, dwkcommentaries.com (July 9, 2020).

 

Defense Attorneys Accuse Attorney General Ellison of Contempt of Court in George Floyd Cases  

On July 14 Earl Gray, the attorney for defendant Thomas Lane, and Robert Paule, the attorney for defendant Tou Thau, accused Attorney General Keith Ellison of contempt of court by his issuance of a statement announcing the appointment of four Special Assistant Attorney Generals in the case.[1] That statement, which was the subject of a prior post, merely said the following:

  • “Seasoned attorneys join AG Ellison’s team pro bono in George Floyd case”
  • “Includes former acting U.S. Solicitor General Neal Katyal, Minnesota attorneys Lola Velázquez-Aguilu, Jerry Blackwell, and Steve Schleicher”
  • “Minnesota Attorney General Keith Ellison today announced that four seasoned attorneys and trial lawyers have joined on a pro bonobasis the prosecution team he leads in the George Floyd case. This team includes attorneys from the Minnesota Attorney General’s Office and the Hennepin County Attorney’s Office.”
  • “’Out of respect for Judge Cahill’s gag order, I will say simply that I’ve put together an exceptional team with experience and expertise across many disciplines. We are united in our responsibility to pursue justice in this case,’ Attorney General Ellison said.”
  • “The attorneys joining the prosecution team, each of whom Attorney General Ellison has appointed a Special Assistant Attorney General, are:
    • “Neal Katyal, partner at the international law firm Hogan Lovells, and former acting Solicitor General and former Principal Deputy Solicitor General of the United States.
    • Lola Velázquez-Aguilu, litigation and investigation counsel for Medtronic, and former prosecutor with the U.S. Attorney’s Office for the District of Minnesota. During her tenure at the U.S. Attorney’s Office, she prosecuted complex multi-defendant, white-collar crimes, including the successful prosecution and trial of several former executives from Starkey Hearing Technologies. Until today, she served as Chairwoman of the Commission on Judicial Selection, to which position she was appointed by Governor Tim Walz.
    • Jerry Blackwell, trial lawyer and founding partner, CEO, and chairman of the Minneapolis law firm Blackwell Burke, P.A. In June 2020, he won a full, first-ever posthumous pardon for Max Mason, who was wrongly convicted of rape in connection with the infamous Duluth lynching of June 1920.
    • Steven L. Schleicher, partner at the Minneapolis law firm Maslon LLP; former prosecutor with the U.S. Attorney’s Office for the District of Minnesota, the Minnesota Attorney General’s Office, the Winona County Attorney’s Office, and U.S. Army Reserve JAG Corps. In 2016, he led the successful prosecution of the person responsible for the kidnapping and murder of Jacob Wetterling.”

According to Mr. Gray, “Ellison should be jailed along with” his spokesman John Stiles. “There is no reason to announce that these so called ‘super stars’ are joining the prosecution and that they’re doing it for free. It is an obvious statement to the public that these ‘super stars’ lawyers believe that our clients are guilty. Further proof that the news release was done to influence the public is that it was released by John Stiles, who, according to Google, is a chief strategy officer and builds reputations and brands.”

Mr. Paule merely moved the Court for an order holding “Keith Ellison, the Attorney General for Minnesota and lead prosecutor in the above-captioned case, in contempt of court and ordering sanctions as a result of his actions.”

The Court’s Gag Order[2]

The purported basis for these motions is the Court’s Gag Order of July 9, which prohibited attorneys and others working on the matter from publicly talking about  “any information, opinions, strategies, plans or potential evidence . . . either to the media or members of the general public. This includes, but is not limited to, any discovery provided to the parties, and any exhibits in the case.”

Reactions

Joseph Daly, professor emeritus at Mitchell Hamline School of Law, believes it unlikely that the judge will sanction or have Ellison and Stiles arrested. “Judges do not like to sanction lawyers unless their conduct is outrageous.” At most, Daly thought, the judge might  issue a warning or clarify his gag order.

I concur in Daly’s opinion. The Attorney General’s statement, in my judgment, did not concern the AG Office’s “opinions, strategies, plans or potential evidence” or evidentiary “discovery” or “exhibits in the case.” Yes, the statement did contain “information” relating to the case, but it was not information relating to opinions, strategies, plans or potential evidence or evidentiary discovery or exhibits in the case. Moreover, any of the parties in this or any other criminal or civil case has a right to hire new or additional attorneys and to give public notice of such developments.

In short, there is no basis in the Attorney General’s statement for the two defense attorneys’ assertion that it was intended to tell the public that these ‘super stars’ lawyers believe that our clients are guilty.’  It would be just as easy to speculate, without any foundation, that the statement was a sign that the Attorney General is worried about the strength of the criminal charges or the capabilities of the existing team of prosecution attorneys.

These motions are ridiculous and should be denied.

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[1]  Xiong, Defense attorneys in George Floyd’s death accuse AG Ellison of contempt of court, StarTribune (July 14, 2020); Minnesota Attorney General, Seasoned attorneys join AG Ellison’s team pro bono in George Floyd Case (July 13, 2020).

[2]  Gag Order in George Floyd Murder Cases, dwkcommentaries.com (July 9, 2020).

 

Derek  Chauvin and Tou Thau Object to Gag Order 

On July 13, that attorney for Derek Chauvin, one of four defendants in the criminal cases over the death of George Floyd, filed an objection to Judge Peter Cahill’s gag order. in addition, the attorney for another defendant, Tou Thau, filed a motion to vacate the gag order.[1]

That order, it is argued, violates Chauvin’s federal and state constitutional rights to free speech and a fair trial. The attorney asserted, “For more than a month, the press, popular figures, high ranking politicians, and the attorney leading this prosecution [Ellison] — as well as his councilman son — have all rendered their verdicts in this case and on the most public stages possible. And they have all deemed the Defendant guilty.” By issuing that order before Chauvin or his attorney had made any public statement, the court effectively has allowed “the repeated and unmitigated condemnation of a criminal defendant by non-party public officials and celebrities.” As a result, the jury pool already allegedly has been tainted.

Chauvin’s attorney also argued that “the judge inappropriately issued the order without citing legal authority or convening a hearing on the matter, depriving Chauvin of his constitutional right to due process.”

Therefore, that attorney requested the court to vacate the order.

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[1] Xiong, Attorney for Derek Chauvin objects to judge’s gag order in George Floyd death, StarTribune (July 13, 2020); Chauvin’s attorney objects to gag order in George Floyd case, MINNPOST (July 13, 2020), That gag order was issued on July 9. (Gag Order in George Floyd Murder Cases, dwkcommentaries.com (July 9, 2020).)

 

 

Third Ex-Cop in George Floyd Case Posts Bond and Leaves Jail 

On July 4, Tou Thau, a former Minneapolis police officer charged with aiding and abetting the murder of George Floyd, posted bond of $750,000 and was released with conditions from the Hennepin County Jail.[1] Earlier two other ex-officers charged with the same crime—Thomas Lane and J. Alexander Kueng—had posted the same amount of bond and had been released from jail.[2]

The fourth defendant in the Floyd killing—Derek Chauvin—has not posted a higher bond–$1 million with conditions and $1,250,000 without conditions and thus remains in custody at the Oak Park Heights prison.

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[1] Xiong, Third fired Minneapolis police officer charged in Floyd death is out of jail, StarTribune (July 4, 2020).

[2] Walsh, Fired Minneapolis police officer, Thomas Lane, one of 4 charged in George Floyd’s death, posts bail and leaves jail, StarTribune (June 11, 2020); Another Minneapolis Policeman in George Floyd Cases Makes Bail, dwkcommentaries.com (June 20, 2020).