Federal Criminal Trial for George Floyd Killing: Opening Statements

The trial of J. Alexander Kueng, Thomas Lane and Tou Thao began on January 24 with the opening statements of the prosecution and defense attorneys.[1]

Prosecution’s Opening Statement

Assistant U.S. Attorney Samantha Trepel said that when police officers take a person into their custody, those officers are responsible for keeping that ensuring a person’s safety. “In your custody is in your care. It’s not just a moral responsibility, it’s what the law requires under the U.S. Constitution.” Then someone signs “up to carry a gun and wear a badge [it] comes with life or death duties.”

“Here, on May 25, Memorial Day 2020, for second after second, minute after minute, these three CPR-trained defendants stood or knelt next to officer Chauvin as he slowly killed George Floyd right in front of them” and each of them  “made a conscious choice over and over again not to act. They chose not to intervene and stop Chauvin as he killed a man slowly in front of their eyes on a public street in broad daylight.” Eventually  “the window to save Floyd’s life slammed shut.”

Defense Counsels’ Opening Statements

Before their opening statements, at least two defense counsel asked Judge Paul Magnuson to declare a mistrial due to the prosecution’s alleged “argumentative” opening statement, but the Judge denied the request.

Attorney Robert Paule, representing ex-officer Tou Thau, acknowledged “the tragedy” of Mr. Floyd’s death, but “a tragedy is not a crime.” He reminded the jury that the familiar video by a young woman at the scene did not show why the officers were at the scene in the first place– to investigate a report of a counterfeit $20 bill and Mr. Floyd’s erratic behavior and failure to follow officers’ directions.

Attorney Thomas Plunkett said his client, ex-officer J. Alexander Kueng, was a “rookie officer” who was deeply influenced by Chauvin, the most senior officer on the scene with 19 years on the street, a field training officer (FTO) in Third Precinct “for a very long time” and Kueng’s FTO. Such a FTO “has great control over a young officer’s future” in the Department and can recommend the termination of such a newcomer. In order for Kueng to be found guilty, the jury must conclude that he acted willfully, which requires proof that he acted with a bad purpose to disobey the law to deprive Floyd of his rights.

However, there is no such proof. Moreover, the Minneapolis Police Department’s “training on ‘intervention’ is little more than a word on a PowerPoint.” With senior officer Chauvin in charge, Kueng did not have the experience or proper training to deal with the situation as it unfolded or how to intervene. Nevertheless, he checked Floyd’s pulse twice and told Chauvin he could not detect a heartbeat.

The video taken by a bystander was not what Kueng saw. It is not what he perceived. It is not what he experienced.

Attorney  Earl Gray for ex-officer Thomas Lane, emphasized that Floyd at 6 foot four and 225 pounds “was all muscle” and when he reached around in the console of his vehicle, Lane feared he might be reaching for a gun. Later Lane did not put pressure on Mr. Floyd, but just had his hands on the suspect’s feet. Lane suggested to Chauvin they should “hobble” Mr. Floyd on his side, but Chauvin said “no” so it was not done. Lane also suggested that the officers should roll Mr. Floyd on his side, but Chauvin said, “no, he’s good where he is. Lane asked Chauvin if Floyd was experiencing “excited delirium,” when someone after fighting wakes up with super-human strength,” which he learned about at his police training, but Chauvin rejected the suggestion.  When the ambulance arrived, Lane asked to ride with Floyd and performed chest compressions on him and was “not deliberately indifferent at all.”

Finally the attorney said Mr. Lane would testify at the trial.

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[1] Mannix & Walsh, Opening Statements Monday in federal trial of 3 ex-cops implicated in George Floyd’s death, StarTribune (1/24/22); Live: Federal trial of 3 former Minneapolis officers in George Floyd death, StarTribune (1/24/22); Bailey, Opening statements to begin in federal trial over George Floyd’s killing, Wash. Post (1/24/22); Arango, George Floyd’s Civil Rights Are Focus in Opening Arguments of Federal Trial, N.Y. Times (1/24/22); Ajasa, Trial begins of three ex-police officers present at George Floyd murder, Guardian (1/24/22)

 

 

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.

Other Orders Regarding Upcoming Federal Criminal Trial Over Killing of George Floyd

As discussed in a prior post, on January 11, U.S. District Court Judge Paul Magnuson held a pretrial hearing in the federal criminal case against three ex-Minneapolis policemen over the killing of George Floyd and issued an order regarding certain issues.

The next day, the Government submitted a motion to clarify or reconsider two  of those rulings: (1) possible precluding one of the Government’s medical experts and (2) precluding a witness who was nine-years old on the date of Mr. Floyd’s encounter with the police and his death (May 25, 2020). Another motion regarding [1]

On January 14, Judge Magnuson issued an Order on the Government’s motion. First, it denied the motion for reconsideration of the refusal to allow the testimony of the young witness. Second, it granted the motion to clarify the ruling regarding the medical experts by saying, “the Court did not preclude the Government from offering multiple medical experts, but rather only ordered the Government  to ensure that its medical evidence was not cumulative. The Government has supplied the Court with information about three medical experts it intends to call as witnesses, and the testimony of these experts is not cumulative. The government may propound these witnesses, subject to other objections Defendants may raise.” [2]

The Court also on January 14 issued another order regarding the Government’s motions regarding defendants’ proposed evidence. It ruled inadmissible the reports of defense police-practices and use-of-force experts (Greg Meyer and Steve Ijames) on the ground that these reports “are replete with legal conclusions, attempts to introduce hearsay, and make improper determinations of fact and witness credibility.” However, these experts will be permitted to testify because “they clearly are [qualified]” and their “testimony … in that regard will assist the jury. But should either of these experts attempt to testify regarding matters that are inadmissible or improper, the Government may object.” [3]

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[1] Government’s Motion To Clarify or Reconsider Certain Pretrial Rulings, U.S. v. Thao, et al., Criminal No. 21-108 (D. Minn. 01/12/22).

[2] Order, U.S. v. Thao, et al., Criminal No. 21-108 (D. Minn. 01/14/22).

[3] Order, U.S. v. Thao, et al., Criminal No. 21-108 (D. Minn. 01/14/22).

 

 

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).

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).

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

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

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

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

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

  • Count 1 charged Derek Chauvin, “while acting under color of law . . . willfully deprived George Floyd of the right, secured and protected by the Constitution and laws of the United States, to be free from an unreasonable seizure, which includes the right to be free from the use of unreasonable force by a police officer.”
  • Count 2 charged Tou Thao and J. Alexander Kueng, “acting under color of law, willfully deprived George Floyd of the right, secured by the Constitution and laws of the United States, to be free from an unreasonable seizure . . . [by failing] to intervene to stop . . . Chauvin’s use of unreasonable force.”
  • Count 3 charged all four defendants, “while acting under color of law, willfully deprived George Floyd of the right, secured and protected by the Constitution and laws of the United States, not to be deprived of liberty without due process of law, which includes an arrestee’s right to be free from a police officer’s deliberate indifference to his serious medical needs [when they saw ] George Floyd lying on the ground in clear need of medical care, and willfully failed to aid Floyd, thereby acting with deliberate indifference to a substantial risk of harm to Floyd.”

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

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

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

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

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

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

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

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

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

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

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

Derek Chauvin Trial: Arguments About Sentencing of Chauvin

On June 2, the State and Derek Chauvin submitted vastly different briefs about the appropriate sentence for his conviction for second- and third-degree murder and second-degree manslaughter. The State argued for 30 years imprisonment while Chauvin asked for time already served and probation. [1]

The State’s Argument for 30 Year Sentence  [2]

The State’s argument for a 30-year sentence was based upon the trial court’s already having decided that there are “beyond a reasonable doubt” four separate aggravating factors in  Chauvin’s] killing of George Floyd: () Chauvin “abused a position of trust and authority” as a police officer; (2) he “treated George Floyd “with particular cruelty;” (3) Chauvin “acted in concert with three other  .. . [officers], who all actively participated in the creimes;” and (4) children were present when Floyd was pinned to the pavement at 38th and Chicago for more than 9 minutes until he died. (Pp. 1-2.)

In reliance upon Minnesota Supreme Court decisions, the State argued that “each of these factors supplies a “substantial and compelling reason’ for imposing an aggravated sentence” and that “where one or more aggravating factors are present, the district court can impose a sentence up to ‘double the upper limit of the presumptive range.’” This is especially true in this case when the court has concluded that Chauvin’s abuse of his position of trust and authority was “egregious and that multiple aspects of his conduct were ‘particularly cruel.” (Pp. 1-2.)

Here, the “presumptive sentencing range . . . [for Chauvin’s] conviction for . . . second-degree unintentional murder, [which is the  most serious of the crimes for which Chauvin was convicted] is 128 to 180 months. The State therefore respectfully request that the court sentence . . . [Chauvin] to 360 months, or 30 years, in prison.” (P. 3.)

In addition, the State took no position “at this time” on the recommendation in the pre-sentence investigation report that Chauvin pay restitution in an amount to be determined by the Court, but reserved the right to address restitution at the sentencing hearing or thereafter. (P. 21, footnote 7.).

Chauvin’s Argument for Mitigated Departure  and Sentencing [3]

First, Chauvin argued for a discretionary downward departure and a sentence for a “stringent probationary term.” This departure purportedly was justified by the following alleged facts (pp. 4-10):

  • Chauvin was 44 years old at the time of his encounter with George Floyd and his having led “a hard-working, law-abiding life . . .[his not having experienced] a legal issue,  [his still having] the ability to positively affect his family and his community” and the likelihood as a former police officer of his  “becoming a target in prison” by other inmates.
  • “Chauvin has a criminal history of zero [with] no previous convictions for felony, gross misdemeanor, or misdemeanor offenses.” Moreover, “prior to his conviction, [he] complied with all the terms of the Court’s release orders and made every court appearance.”
  • ”Chauvin has been very respectful of the judicial process, the Court, and the State;” upon learning that a complaint and warrant had been issued for him, he turned himself into custody; [after being released on bail, he] remained out-of-custody, attended all court appearances, was never unruly, was properly dressed for court, and was deferential to the Court under all circumstances.” He thereby “established that he is particularly amenable to probation.”
  • Before “this incident” occurred, Chauvin was an average man with a loving family and close friends, and he still has such close relationships. “He has the support of his mother, stepfather, father, stepmother, and sister [and his] ex-wife, her family and his former stepchildren.”
  • Chauvin has demonstrated that he is amenable to probation and will be an asset to the community.

Second, these same alleged facts also support Chauvin’s alternative request for a  durational  downward departure for his sentence as do the following additional factors (Pp. 10-12):

  • “Chauvin was unaware that he was even committing a crime.[ Instead,] in his mind, he was simply performing his lawful duty in assisting other officers in the arrest of George Floyd.” Chauvin’s “offense is best described as an error made in good faith reliance [on] his experience as a police officer and the training he had received—not intentional commission of an illegal act.”
  • Chauvin did not use “a dangerous weapon” and “did not intend to cause George Floyd’s death.”

Third, Chauvin argued that an aggravated upward departure was unwarranted for the following reasons (pp. 12-16):

  • “There is no evidence that the assault perpetrated by Mr. Chauvin against Mr. Floyd involved a gratuitous infliction of pain or cruelty not usually associated with the commission of such an offense.” This assault “occurred in the course of a very short time, involved no threats or taunting, such as putting a gun to his head and pulling the trigger. . . and ended when EMS finally responded to officers’’ calls.”
  • The officers twice called for medical assistance and Chauvin remained on scene until it arrived.
  • “The defense is aware of no caselaw in Minnesota . . in which a peace officer’s position has been considered an aggravating factor for an upward departure in sentencing.”
  • None of the codefendants has been convicted of a crime related to the crimes of which Chauvin has been convicted.
  • “The defense is unaware of any case in Minnesota in which the presence of children factor has been considered in a bystander-witness situation where the children, themselves, were not placed in danger.”

Conclusion

 The State’s argument for a 30-year sentence was persuasive, given the court’s prior determination that there were four factors favoring upward sentencing departure.

Chauvin’s argument, on the other hand, was ridiculous in claiming the right to probation or downward departure in the length of any sentenced imprisonment, given the trial record and his conviction of all three counts by a jury.  Here are some additional reasons for that reaction.

First, Chauvin did not testify at trial, and there were no purported evidentiary bases asserted for his sentencing argument.

Second, many people who were interviewed about Chauvin by the New York Times said Chauvin “did his job as if he were playing a role—a tough Dirty Harry on the lookout for bad guys … [and] seemed to operate at an emotional distance from those around him. [He] was a quiet and rigid workaholic with poor people skills and a tendency to overreact—with intoxicated people especially .” [4]

Third, Chauvin ‘s record as a MPD policeman for 19 years includes 22 complaints that many people believe should have raised alarm in the MPD and triggered a general review.[5]

Fourth, In the state criminal case, in which the jury concluded that Chauvin was guilty of all three charges—second- and third-degree murder and second-degree manslaughter–the prosecution requested court permission for admitting into evidence eight of the previous MPD complaints against Chauvin for his actions as a policeman, and the court granted permission for evidence of one such incident on June 25, 2017 and provisional permission for another on August 25, 2015 if there was “clear and convincing evidence that Chauvin was present when a medical professional made certain remarks.” [6]

Fifth, the previously mentioned June 25, 2017 MPD complaint against Chauvin recently has been asserted in a separate federal grand jury indictment of Chauvin in the Minneapolis federal court. It alleges that in this instance Chauvin deprived a 14-year-old boy of his civil rights by pinning him down, striking him on the head with Chauvin’s flashlight and grabbing him by the throat and hitting him again.[7]

Sixth, another troublesome Chauvin incident that took place only three weeks before the killing of George Floyd was his takedown of another Black man (Adrian Drakeford) in a manner very similar to the takedown of Floyd that was videotaped by the man’s brother. Drakeford was not involved in any suspected crime and was released without charges and without any complaint against Chauvin and his colleagues (J. Alexander Kueng and Thomas Lane). [8]

Seventh, the Floyd family’s complaint in a federal-court civil lawsuit for money damages against the City of Minneapolis, Chauvin (and his three colleagues) alleged that Chauvin was the subject of 17 citizen complaints from 2006 to 2015, that Chauvin as a policeman participated in the shooting and killing of three individuals and in 2005 engaged in a reckless police chase resulting in the deaths of three individuals. On March 12, 2021, in the midst of the state court trial of Chauvin, the City of Minneapolis announced its agreement to settle this case with a payment of $27 million to the Floyd family.[9]

Eighth, only a few days after Mr. Floyd’s death, Chauvin and his then-wife reached an agreement for divorce that would transfer the bulk of his assets to her and thereby presumably protect those assets from any attempt by the Floyd family to seize them to collect a future money judgment against Chauvin.  However, a Minnesota state court found that divorce agreement to be fraudulent and that the court subsequently subsequently approved that agreement only after there were major changes. This interpretation of the proposed divorce agreement is also supported by Chauvin’s claim in his sentencing brief that he “is still supported by his ex-wife, her family, and his former stepchildren.”([10]

Ninth, Chauvin and his-then wife in July 2020 were charged with criminal tax fraud by the State of Minnesota for failure to report over $460,000 of Minnesota income since 2014 resulting in illegal failure to pay over $20,000 of Minnesota taxes. [11]

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[1] Xiong, Chauvin attorney argues for probation instead of prison time for George Floyd murder, StarTribune (June 2, 2021); Forliti (AP), State seeks 30 years for Chauvin; defense want time served, Wash. Post (June 2, 2021).

[2] State’s Memorandum of Law on Sentencing, State v. Chauvin, Hennepin County District Court File No.: 27-CR-20-12646 (June 2, 2021); Derek Chauvin Trial: Court Finds Aggravating Factors for Sentencing, dwkcommentaries.com (May 12, 2021).

[3] Defendant’s Motions for Mitigated Departure and Sentencing Memorandum, State v. Chauvin, Hennepin County District Court File No.: 27-CR-20-12646 (June 2, 2021).

[4]  See these posts to dwkcommentaries.com: Ex-Cop Derek Chauvin: An Enigma in Blue (Aug. 9, 2020); Derek Chauvin’s Policing Background (July 20, 2021); Comment: Journalist’s Report on Derek Chauvin’s Prior Instances of Alleged Abuses (Feb. 2, 2021); https://dwkcommentaries.com/2020/07/20/derek-chauvins-policing-background/Comment: Video of Another Chauvin-Led Takedown of Black Man (Feb. 9, 2021).

[5]  See n. 4.

[6] See these posts to dwkcommentaries.com: Evidentiary Rulings and Request for Delay in Chauvin’s Expert Report in George Floyd Criminal Cases (Jan. 26, 2021); Comment: Journalist’s Report on Derek Chauvin’s Prior Incidents of Alleged Abuses (Feb. 2, 2021).

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

[8]  Comment: Video of Another Chauvin-Led Takedown of Black Man, dwkcommentaries.com (Feb. 3, 2021).

[9]  See thees posts to dwkcommentaries.com: George Floyd Family’s Complaint Against the Four Ex-Police Officers Over His Death, (July 17, 2020); Derek Chauvin Trial: Week One, (Mar. 15, 2021); Derek Chauvin Trial: Week Two, (Mar. 21, 2021).

[10] See these posts to dwkcommentaries.com: Derek Chauvin’s Wife’s Divorce Petition Raises Questions, (July 8, 2020);  State Court Rejects Chauvin Divorce Settlement,(Nov. 20, 2020); Complications in Derek Chauvin’s Divorce Case,(January 20, 2021); Comment: Court Approves Redacted Chauvin Divorce Agreement, (Feb. 4, 2021)

[11]  Chauvin and Wife Now Charged with Minnesota Tax Crimes, dwkcommentaries.com (July 22, 2020).

 

 

Federal Criminal Cases Against Ex-Minneapolis Cops for George Floyd Death: Initial Proceedings

On May 6, 2021, the U.S. Department of Justice filed in the U.S. District Court in Minneapolis an indictment over the killing of George Floyd on May 25, 2020 against four former Minneapolis policemen (Derek Chauvin, Tou Thao, J. Alexander Kueng and Thomas Kiernan Lane).

On the same date the Department filed a separate Indictment against Derek Chauvin over his alleged use  of unreasonable force against a juvenile in 2017.

The Indictment Over the Death of George Floyd [1]

The Indictment against all four former Minneapolis policemen asserted the following three counts:

  • Count 1 charged Derek Chauvin, “while acting under color of law . . . willfully deprived George Floyd of the right, secured and protected by the Constitution and laws of the United States, to be free from an unreasonable seizure, which includes the right to be free from the use of unreasonable force by a police officer.”
  • Count 2 charged Tou Thao and J. Alexander Kueng, “acting under color of law, willfully deprived George Floyd of the right, secured by the Constitution and laws of the United States, to be free from an unreasonable seizure . . . [by failing] to intervene to stop . . . Chauvin’s use of unreasonable force.”
  • Count 3 charged all four defendants, “while acting under color of law, willfully deprived George Floyd of the right, secured and protected by the Constitution and laws of the United States, not to be deprived of liberty without due process of law, which includes an arrestee’s right to be free from a police officer’s deliberate indifference to his serious medical needs [when they saw ] George Floyd lying on the ground in clear need of medical care, and willfully failed to aid Floyd, thereby acting with deliberate indifference to a substantial risk of harm to Floyd.”

Initial Hearing of Thao, Kueng and Lane [2]

On May 7, three of the defendants (Thao, Kueng and Lane), who were free on bail in the state criminal case, made their first appearance before U.S. District Judge Paul Magnuson, who issued three separate Orders Setting Conditions of Release that included a $25,000 appearance bond and submission to, and cooperation with, a Pretrial Services interview.

Separate Indictment of Chauvin [3]

This Indictment charged Chauvin with two counts for allegedly willfully depriving a 14-year-old Minneapolis boy of his civil rights during a 2017 arrest. Chauvin allegedly pinned the teenager down and struck him on the head with his flashlight, then grabbed him by the throat and hit him again. The second count alleged that Chauvin held his knee on the neck and upper back of the juvenile while he was lying prone, handcuffed and unresisting.

Initial Hearing for Chauvin [4]

On June 1, Chauvin appeared remotely from a state prison before U.S. Magistrate Becky Thomson. She appointed Erik Nelson, who represented Chauvin in the state trial resulting in his conviction, to act as Chauvin’s defense  attorney. In response to a question whether Chauvin knew he had a right to a federal detention hearing, he said,  “I do know. [but] probably in light of my current circumstances, I believe that would be a moot point.” He then waived his right to a detention hearing and was remanded to federal custody in the state prison

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[1] Federal Court Charges Against Ex-Minneapolis Policemen Over George Floyd’s Killing, dwkcommentaries.com (May 7, 2021); Indictment, U.S. v. Chauvin, Thao, Kueng and Lane, U.S. District Court, District of Minnesota (CR. 21-108 PAM/TNL (May 6, 2021;

[2] Order Setting Conditions of Release, U.S. v. Thao, U.S. District Court, District of Minnesota (CR. 21-108-002 PAM/TNL (May 6, 2021); Order Setting Conditions of Release, U.S. v. Kueng,, U.S. District Court, District of Minnesota (CR. 21-108-003 PAM/TNL (May 6, 2021); Order Setting Conditions of Release, U.S. v. Lane, U.S. District Court, District of Minnesota (CR. 21-108-004 PAM/TNL (May 6, 2021).

[3] Indictment, U.S. v. Chauvin, U.S. District Court, District of Minnesota (CR. 21-109 WMW/HB, May 6, 2021).

[4] Mannix, Derek Chauvin appears before federal judge on civil rights charges, StarTribune (June 1, 2021); Forliti (AP), Chauvin makes appearance on federal charges in Floyd’s death, Wash. Post (June 1, 2021).