Chauvin trial footnotes (2)

Last Sunday I posted a few footnotes to our coverage of the trial of Derek Chauvin for the death of George Floyd. I posted the footnotes in the form of bullet points. Last week’s footnotes are included below under April 25. Today I want to add footnotes in the same form and keep this going as warranted:

• Chauvin was convicted of second-degree murder and two lesser included offenses. Minnesota law (i.e., Minn. Stat. § 609.035) follows a “single behavioral incident” rule precluding additional punishment for the same “conduct.” See, e.g., the Minnesota Supreme Court decision in State V. Branch (2020).

• Here all three offenses were inarguably predicated on the same conduct. At least the State does not dispute this point. Accordingly, I believe the rule applies in this case. Chauvin is to be sentenced on the second-degree murder charge, but not on the lesser included offenses.

• The applicability of the third-degree murder charge to the facts of the case raises a question of law. Holding that the third-degree murder charge did not apply to the facts in the case, Judge Cahill originally dismissed it. He reinstated it on the express order of the Minnesota Court of Appeals based on its February 1 ruling in State v. Noor.

• The Minnesota Supreme Court has accepted the Noor case for review. It is to be argued next month. We won’t have a decision in the case until later this year. The third-degree murder charge against Chauvin should stand or fall with that decision. For the reasons stated above, however, it won’t matter unless the second-degree murder charge against Chauvin is reversed on appeal.

• As I have repeatedly noted in my own trial coverage, the Hennepin County District has set up a page with access to all public filings in the case. Here it is. It includes all the wrangling over the third-degree murder charge.

• Chauvin’s sentencing is scheduled for June 25. Sentencing is generally governed by the Minnesota Sentencing Guidelines. The presumed sentence in the Chauvin case is around 12-and-a-half years.

• The State has moved for an upward sentencing departure. The State’s memorandum is here. The State has separately filed several Minnesota appellate cases supporting its motion for an upward sentencing departure. Chauvin’s memorandum opposing the State’s motion is here. All these materials are accessible under the April 30 filings.

• I believe the Minnesota Sentencing Guidelines were originally adopted in 1980 in part to prevent disparities in sentencing based on race or other inappropriate factors. If they were ever needed for this purpose, I think they have been highly successful. However, that is not the impression one would get from the Minnesota Supreme Court’s farcical 1993 Task Force Report on Racial Bias in the Judicial System. (The report addresses sentencing at pages 49-58.) See my 2013 Federalist Society remarks “Bias in the air.”

• Brandon Mitchell was juror number 52. He participated in the deliberations on the verdict and is the first juror to have spoken to the press about them. KARE 11’s Lou Raguse interviewed Mitchell and has posted the transcript here along with a 30-minute video of the interview.

• Mitchell also spoke to the Associated Press (Amy Forliti and Doug Glass), the Star Tribune (Chao Xiong), and the Wall Street Journal (Joe Barrett and Deena Winter). Lou Raguse, Joe Barrett, and Chao Xiong attended the trial in the Media Business Center across the street from the courthouse.

• Barrett’s WSJ story includes this revelatory tidbit: “Each morning, all jurors would drive to pickup locations in the suburbs and then were driven to the courthouse by deputies in unmarked cars, he said. Then they would leave from several different buildings, sometimes a block or two away from the courthouse.”

• Barrett also quotes Mitchell to the effect that he’d go to his mother’s home in the Minneapolis suburb of Brooklyn Park “to feel some love” after tough trial days. Brooklyn Park is immediately north of Brooklyn Center, the scene of the death of Daunte Wright and related events giving rise to the curfew imposed during Chauvin’s trial.

• It was reported last week — via a leak to the Star Tribune’s Andy Mannix — that the Department of Justice allegedly plans to indict Chauvin and the three other officers facing trial on state charges in August on federal criminal civil rights charges.

• Mannix’s story is sourced with perfect vagueness. The federal project must have been initiated as part of a “backup” plan in case Chauvin would have been acquitted. Mannix’s talkative “sources” apparently did not explain what purpose federal civil rights charges would serve in the event of convictions on the state charges, or Mannix wasn’t asking.

• Every left-wing organization in the United States including colleges, universities, and religious sects has taken the verdicts as an occasion to pronounce on what is to be done. These pronouncements have taken the form of reflections, letters, or messages to alumni and members. Peter Berkowitz responds to the “reflections” of Swarthmore College President Valerie Smith in his own open letter to her. My taste runs to something harsher, but at least Berkowitz is talking back and illustrating one way to do it. I have just deleted the messages in disgust.


• The thirteenth and fourteenth seated jurors served as alternates and were released at the end of the trial. Juror number 96 — Lisa Christensen — was the thirteenth seated juror. She made the media rounds last week in the aftermath of the verdict.

KARE 11’s Lou Raguse interviewed Christensen in “‘I wish it didn’t have to happen’: Alternate juror reflects on Derek Chauvin trial.” Christensen lives in Brooklyn Center and had to navigate her way home through the crowds blocking intersections to protest the death of Daunte Wright.

Quotable quote:

Raguse: Did you want to be a juror?

Christensen: I had mixed feelings. There was a question on the questionnaire about it and I put I did not know. The reason, at that time, was I did not know what the outcome was going to be, so I felt like either way you are going to disappoint one group or the other. I did not want to go through rioting and destruction again and I was concerned about people coming to my house if they were not happy with the verdict.

• The Biden-Harris Department of Justice announced an investigation of the Minneapolis Police Department the day following the verdict. They are from the federal government and they are here to help us. NR’s Andrew McCarthy explains in the Corner post “Obama Encore: Biden Justice Department Announces Investigation of Minneapolis Police Department.”

• The Manhattan Institute’s Heather Mac Donald said everything I would have said if I had “the necessities” in “A troubled rule of law.” Heather’s column is the best thing I have read since the jury handed down the verdicts in the Chauvin trial.

• Alan Dershowitz takes up a theme that has preoccupied me in my own comments on the case in the Gatestone column “A Long and Sordid History of Crowds Threatening Violence in the Event of a Jury Acquittal.”

• As I noted last week, I spoke with Spectator editor Freddy Gray on the Friday before the jury heard closing arguments and retired to deliberate (podcast below). The Spectator also posted the column I wrote immediately following the jury’s return of the verdicts on Tuesday under the headline “How fair was the Derek Chauvin trial?” The Spectator has fixed the proofreading errors that reflected my haste in completing the column the afternoon the verdicts were returned.

• Working on the column put me in mind of Robert Bly’s beautiful poem “Driving toward the Lac Qui Parle River.” Read it and you’ll see why.

• Friends sent me the BBC clips below.