Report on Motion Hearing in the George Floyd Case on September 11, 2020:
Is this just a coincidence? Officer Derek Chauvin placed his knee on George Floyd’s neck for eight minutes and 46 seconds and the latest hearing regarding various motions unfolded on 9/11. Nineteen years ago on September 11th, the North Tower was struck at exactly 8:46 am.
Wait, was George Floyd a snitch?
Defendants, particularly former MN police officer J. Alexander Kueng and his attorney Thomas C. Plunkett, are requesting any and all files pertaining to Floyd’s cooperation as an informant for the Minneapolis Police, FBI, or any other state or federal law enforcement agency either before or after May 6th, 2019. There is also a question of Floyd being a gang member within the past five years.
Kueng is also requesting body-worn camera (BWC) footage of Floyd’s drug arrest and all records relating to his autopsy and death investigation.
Prosecutor Matthew Frank said the state was waiting for information on why defense counsel would think this about Floyd and how it is relevant to the case. He said the motion was intended to smear Floyd by throwing “informant and gang affiliation” into the case.
The idea of smearing Floyd is arguably a joke given that his system was teeming with drugs despite the fact that so-called independent medical examiner Michael Baden did not run a toxicology report on him.
Hennepin County’s Medical Examiner Andrew Baker did conclude however that there were ‘other significant conditions,” including coronary artery disease and hypertensive heart disease. Plus Minneapolis-based NMS Labs discovered “fentanyl intoxication and recent methamphetamine use.”
Baker’s autopsy record was an exhaustive and comprehensive 20-page report yet two members of Hennepin County’s Board of Commissioners tried unsuccessfully to prevent him from being reappointed for another four-year term, claiming that he has caused “irreparable damage to the black community.” Why? For doing his job?
Members of the defense also acknowledged that other prior health issues and drugs were responsible for him losing his breath.
“Put simply, George Floyd could not breathe because he had ingested a lethal dose of drugs, including fentanyl,” said Derek Chauvin’s attorney, Eric Nelson at the Friday September 11 hearing. “Combined with sickle cell trait, his pre-existing heart conditions, Mr. Floyd’s use of fentanyl and methamphetamine most likely killed him.”
In other exhibits, Kueng who was apparently a rookie taking orders from Chauvin, presented evidence hinting that Floyd had a history of drug abuse and criminal charges. For instance, in May 2019, Floyd was caught with large quantities of controlled substances. During that incident, Floyd admitted to ‘snort[ing] oxycodone daily.’ He was also involved in a burglary in August 2007 during which he placed a gun on a woman’s abdomen and allowed her to be pistolwhipped by an accomplice.
Judge Peter Cahill flatly denied a motion by defense attorneys for the state to compel the release of records related to Floyd’s 2007 arrest in Harris County Texas, saying it wasn’t relevant to the case.
He also denied, for now, any admission of the May 2019 incident between Floyd and Minneapolis Police first cited by Earl Gray, Officer Thomas Lane’s attorney, but said he would reconsider once attorneys had access to apparent body camera video of the incident. Prosecutor Frank said he believes the state now has the video and plans to share it with defense attorneys.
Cahill gave the defense two weeks after the receipt of the body camera videos, in that case, to make an argument on why the incident should be included as evidence in this case.
“SLOPPY WORK”| COUNTY ATTORNEY RELEASED FROM CASE
Reporters arrived at a heavily fortified barricaded Family Justice Center in downtown Minneapolis at 9 am on September 11th where the windows of nearby buildings had been boarded up and the entire block was closed due to anticipated protests. They were escorted up to courtroom 630, past dozens of law enforcement officers. Due to the Covid19 pandemic, hand sanitizers and wipes were present, along with many masked humans.
During the motion hearing that lasted 3½ hours, Cahill overseeing the criminal case of four former Minneapolis Police officers charged in the May 25th killing of George Floyd went over a series of motions, including whether the trial should be moved out of the county, whether the defendants should be tried in one trial or separately, and how jurors will be selected. He did not rule on all the motions.
According to a court officer, three friends or family members attended to support 44-year-old Chauvin. This was the first time that he was seen in the flesh as opposed to appearing via videolink.
In the hallway, you could hear chants for justice from protesters assembled outside. And outside as the officers exited the building, there were chants of “murderer!”
Cahill promptly disqualified Hennepin County Attorney prosecutor Mike Freeman and his staff from the case because they stealthily sent prosecutors to question Baker back in June without an outside attorney present.
“I think it was sloppy not to have someone present. Those four attorneys are off the case. They are not to participate,” Cahill stated. “They are now witnesses.”
Frank told the judge he thought the decision was “heavy-handed.”
Minnesota Attorney General Keith Ellison, who has arguably already tried this case in the media, was in attendance. Others included Special Attorney for the State of Minnesota Neal Katyal. All exchanged elbow bumps.
Since the week of the incident, Ellison, who is in charge of prosecuting this case, has appeared in the local and national press, making statements like, “Nor would I be part of prosecution unless I believed the person was guilty and … needed to be held accountable” and “This case is unusual because of the way Mr. Floyd was killed and who did it: at the hands of the defendant, who was a Minneapolis Police officer.”
Consider also that for months Ellison sat on bodycam footage belonging to Alexander Kueng, and Thomas Lane that paints a different picture. Floyd was on drugs, hysterical, and repeatedly said “I can’t breathe” before Chauvin ever placed his knee on his neck. In fact, he asked to be placed on the ground because he was claustrophobic. However, he was able to sit in his own vehicle without an issue.
The Hennepin County Attorney’s Office, which initially charged Mr. Chauvin, also unethically leaked plea negotiation information to the media, which was reported locally at first, and then picked up by the national news media.
Cahill announced Friday that he would not hear oral arguments on “probable cause” or motions to dismiss. “There will not be a decision today.”
He asked that no one read into this decision – that he’s proceeding forward with other motions, even as he still hasn’t decided on Motions to Dismiss, which would end the trials. “Do not read into the fact we are continuing on with the motions.”
MOTIONS ON JOINT VERSUS SEPARATE TRIALS
“Minnesota… has a historical preference for separate trials[.]” Under Minnesota law, the trials of two or more defendants may be joined when the defendants “are charged with the same offense.” Court Document
Chauvin was charged with three offenses: Second-degree unintentional felony murder; third-degree depraved mind murder; and second-degree unintentional manslaughter. Meanwhile, the three other officers Thomas Lane, J. Kueng, and Tou Thao, who are all out on bail, have been charged with aiding and abetting second-degree murder and manslaughter.
“These defendants acted together, they were on the scene together, they were talking to each other during the near nine minutes Floyd was on the ground,” Katyal said.
Katyal rejected claims from the defense about an antagonistic defense, saying the officers are making similar defense arguments.
He also questioned the impact of separate trials on the court and on justice – citing cost and impact on other trials. With four separate trials, “We are talking about delayed justice for months, if not years,” Katyal said, adding that separate trials would risk “prejudicing future juries.”
He said a joint trial would also “allow the community to absorb the verdicts at once” and prevent further trauma.
Katyal argued for a joint trial on behalf of the state, repeating the outlines of their recent filings – including similar evidence against all four officers and the impact of separate trials on witnesses and friends. “I have seen a lot in my life, and I can barely watch the videos,” he said, adding it would force witnesses to “relive the trauma.”
Ellison wrote in a court document:
Defendants deny that they acted in close concert—even though the body-worn camera footage plainly shows that Chauvin, Kueng, & Lane worked together to pin George Floyd to the ground face down for approximately nine minutes while Thao encouraged the others to continue holding Floyd in that position and prevented a group of concerned bystanders from intervening.
In my opinion, Ellison’s language above is inflammatory.
Cahill asked the various defense attorneys to respond.
“Wouldn’t you agree that most of the evidence is the same?” he asked.
“Some of it,” Thao attorney Robert Paule said. But, he added, “I am not just dealing with prosecutors. I am dealing with three other attorneys who are defending their clients.”
Paule warned against a joint trial. “You are bringing in a group of bobcats in a bag and letting them loose in a courtroom at all once,” he said.
Other defense attorneys agreed. Earl Gray, Lane’s attorney, stood and dismissed the state’s argument about the cost and witness impact on other trials. “If Mr. Chauvin is tried first and acquitted then that would end that case,” Gray said. “If Mr. Chauvin was acquitted, I doubt very much they would be able to proceed.”
Just because all four of the individuals charged in this case are police officers does not mean that the officers were acting in concert.
“The other defendants are clearly saying that, if a crime was committed, they neither knew about it nor assisted in it,” Nelson wrote. “They blame Chauvin.”
In addition, Nelson stated that when it comes to Chauvin, it is anticipated that much of the State’s evidence will not overlap with that it uses against the other defendants.
“The State will have to introduce evidence specifically regarding Chauvin’s intentions, his training, his background on the MPD, personnel records, others who have worked him, et cetera. None of this is relevant to the other defendants. In terms of judicial economy and witnesses, it makes sense to try Mr. Chauvin separately on the three counts he faces and first in time.”
MOTION FOR CHANGE OF VENUE AND JURY SEQUESTRATION
Cahill said he believed that it was premature to decide whether to move the trial before determining whether a fair jury can be impaneled in Hennepin County. Meanwhile, there were protestors screaming “murderers” outside? Come on, Cahill. There are Black Lives Matters protests even in Europe.
He told attorneys he is considering an accelerated plan where a survey would be sent months earlier than normal. “Normally six weeks we are trying to get a panel,” he said. In this case, he’s aiming for “several months.”
Cahill proposed doing this the way the court has been handling in the COVID-19 era, that is, sending surveys to potential jurors at home, which elicited objections from both prosecutors and defense attorneys, who questioned whether this would introduce more bias into the jury pool.
“The fact the questionnaire shows up taints the jury before we even get the questionnaire back,” Thomas Plunkett said. “Jurors listen to judges in a courtroom and obey what judges say, but I am not sure if that’s the case when they get a questionnaire at home.”
Robert Paule, Thao’s attorney, advocated for the trial to be moved out of Hennepin County, arguing that jurors will feel pressure to render a verdict based on their fear of civil unrest. “Cities have been ablaze as a result of this case,” he said. “If I was a juror, I would be very worried about that.”
Cahill interjected and asked if Paule believed jurors in a place like Moorhead Minnesota wouldn’t feel similar fears. “It might be callous,” Paule said. “I wouldn’t be worried about the streets of Moorhead being burned.”
Prosecutors as well as attorneys for Lane and Kueng opposed full sequestration of the jury; Paule, on behalf of Thao, argued for it, saying the jury should be “shielded as much as possible.”
Nelson, on behalf of Chauvin, said he was undecided on the question of full sequestration or semi sequestration – where jurors would go home each night but assemble at a meeting point and be escorted to the courthouse.
Cahill is leaning toward an anonymous jury, citing the phone calls, some of then threatening, that he’d received from those who have an interest in the case. He asked all the attorneys if they’d gotten threatening phone calls – all said they had.
Prosecutors and Kueng’s attorney argued for a public jury; Lane’s attorney argued against it, citing incidents including a recent protest outside police union head Bob Kroll’s house, where protesters beat a pinata. “Those are the kind of things you don’t want jurors to hear.”
Later, in the hearing, Keith Ellison passed a note to Frank, who stood and asked the judge to hold a hearing where county prosecutors could make an argument against being disqualified from the case. Cahill agreed but did not set a date.
There was a very brief discussion of a state filing regarding the evidence they plan to introduce against Derek Chauvin, including past incidents of use of force. The prosecutors want to introduce prior acts related to Chauvin’s intent and state of mind.
OTHER DISCOVERY MOTIONS
Other motions for discovery were heard.
Defense attorneys have asked for the records from the autopsies conducted by doctors for the Floyd family as well as the Armed Forces medical examiner. But Frank said those agencies are not under state control and he could not force them to share the records.
Incidentally, the Defense Health Agency (DHA) is a joint, integrated Combat Support Agency that enables the U.S. Army, U.S. Navy, and U.S. Air Force medical services to provide a medically ready force and ready medical force to Combatant Commands in both peacetime and wartime. They were called to review the two autopsies by Baker and supposed “independent” examiner Michael Baden who did not run a toxicology report. DHA concluded homicide was the cause of death and did not consider the level of drugs in the system or preexisting conditions.
Cahill said unless the full records are shared with all parties, he would not allow testimony from those doctors, citing the ned to have the requested documents in hand.
On the issue of Chauvin’s personnel records, Cahill ruled that the state should disclose disciplinary complaints that resulted in discipline to defense counsel but other records must be vetted because of privacy issues, but he allowed there could be further debate later, including if cases are joined.
Cahill said he was working on a tentative plan that the trial (or trials) would be about six weeks – two weeks for jury selection; four weeks for the trial. And he was operating under the assumption that COVID-19 would still be an issue. He asked all attorneys to give input soon on how long they believe it will take them to the present their cases.
Finally, they debated the state’s motion for upward sentencing in the case. Ellison and other prosecutors were looking to increase sentencing for all officers.
Cahill told Frank to explain their first argument in the file—that Floyd was “vulnerable.”
Frank repeated his argument outlined in the motion – that Floyd was handcuffed, face down on the ground and unable to move as he struggled to breathe. “He can’t save his own life. He can’t fight back. There are three police officers sitting on him handcuffed, another police officer is holding people back from helping him,” Frank said.
“It may support cruelty,” Cahill said. The judge gave defense attorneys two weeks to reply after that filing.
The judge gave notice there will likely be hearings this fall to address additional motions but gave no dates.
Keep in mind that Chauvin’s defense team maintains that Derek placed his knee on Floyd’s neck as part of a technique known as “Maximal Restraint” used in situations where handcuffed subjects are combative & still pose a threat to themselves, officers, or others … if not properly restrained.
The hearing wrapped at 12:25 pm. Chauvin was hustled out of the room. He glanced at reporters on his way out and was heckled outside of the building. The other officers were standing in the hallway outside the courtroom with their attorneys and family members as the press exited. There were dozens of law enforcement officers standing between them and members of the Floyd family, who were filing out of rooms at the other end of the hall.
After the hearing, attorneys Thomas Plunkett, Earl Gray walked silently to a truck with their clients as an angry crowd mobbed them and yelled “murderer.”
In closing George Floyd and Derek Chauvin, both worked at the El Neuvo Rodeo. Nelson mentions in a court document that it is “possible” the State will explore whether Mr. Chauvin had a prior relationship with Mr. Floyd.
While speaking before Congress, Philonise Floyd, George’s brother suggested that the Chauvin knew Floyd, and “didn’t like him. … And it has to be racist. It has to be something to do with racism,” he added.
How does he know whether Derek liked George?
Quite the leap given Derek was married to an Asian, and worked with an Asian. Meanwhile, Kueng has been described as black. While no one can dispute police brutality exists, assuming this incident unfolded due to race is presumptuous.
Regardless, they worked in the same club for four years. Maybe Chauvin had a gripe against George. But to assume Derek killed George over race is a stretch. For more on the George Floyd case, check out this video.