Chauvin trial footnotes (6)

I have posted five previous editions of footnotes to our coverage of the trial of Derek Chauvin for the death of George Floyd. This edition bears on the pending case against Chauvin’s three former colleagues as well. My purpose here is to provide background on the legal issues for those who seek to understand them. Readers who think they know all they need to know about these cases are invited to pass them by.

I post these footnotes in the form of bullet points and differentiate facts and law from (my) opinion. I posted my fifth set (June 3). The fourth set (May 9) appended previous editions (May 5, May 2 and April 25). Today I want to add another 16 footnotes in the same form:

• All four officers have been charged with third-degree murder. Chauvin was convicted of the charge as a lesser included offense. He will be sentenced on the second-degree murder conviction. Before trial Judge Cahill dismissed the third-degree murder charge as inapplicable. He reinstated the charge on the order of the Minnesota Court of Appeals based on its decision in the Noor case. The same issue is raised by the charges against the three other officers.

• The legal sufficiency of the third-degree murder charge in the Noor case is before the Minnesota Supreme Court. Yesterday morning the court heard oral argument in Noor’s appeal. The court has posted video of the oral argument here.

• Associated Press reporter Steve Karnowski covered the oral argument here and provides background on the issue in this “explainer.”

• The case was argued via Zoom. The Covid war is over. It’s time to return to regular order in the courts.

• Chief Justice Lorie Gildea is an excellent judge. In the oral argument she confined herself to keeping the trains running on time. One can glean no sense of her thinking about the case from the oral argument.

• I thought the case was well argued on both sides. Noor does not dispute his manslaughter conviction. Arguing in support of Noor’s murder conviction, Assistant Hennepin County Attorney Jean Burdorf essentially conceded that case law belies the State’s argument and urged the court to “clarify” it. Without reading the parties’ briefs, I take it that substantial Minnesota Supreme Court precedent supports Noor’s legal argument.

• The case against Chauvin’s three former colleagues was set for trial before Judge Cahill in August. Judge Cahill has rescheduled the trial in deference to the federal civil rights case brought against all four officers in federal district court here. Yesterday Judge Cahill entered a scheduling order that is posted here.

• Trial of the three other former officers on the state criminal charges is set to commence before Judge Cahill with legal argument and jury selection on March 7. The trial proper is set to begin on March 28.

• We have yet to hear an explanation why federal prosecutors are piling on the former officers in the civil rights case. In Chauvin’s case, the prosecution is redundant. In the three other cases the prosecution is disruptive. In all four cases the prosecution is unsavory.

• Like federal district Judge Patrick Schiltz, who is concerned about leaks of grand jury information to the Times and the Star Tribune, Judge Cahill is disturbed by a leak to the Times regarding plea negotiations per a page-one story that ran on February 10. Judge Cahill has required attorneys in the cases to file affidavits regarding their knowledge of the source of the leak.

• Numerous affidavits denying knowledge have been filed. All of the affidavits have been posted on each of the court pages devoted to the state prosecutions of the four former officers, such as Alexander Kueng’s here.

• The most interesting filing on the Times leak is the letter submitted to Judge Cahill by Minnesota Attorney General Keith Ellison posted here. It provides the background to Judge Cahill’s order requiring counsel to file the affidavits. Although the letter was filed on February 19, it was only posted on May 21.

• Last month I took issue with Jack Cashill’s American Spectator column alleging the intimidation of expert witnesses in the Chauvin case. Cashill’s column was based on the May 12 motion filed by counsel for Tou Thao. The motion is posted here.

• In relevant part Cashill’s column relied on an exhibit to the defense motion that has not been made public. I didn’t think the average reader would understand that Cashill himself hasn’t seen the evidence on which his column was based. The motion alleging witness intimidation remains pending before the court and is taken up by Chauvin in his post-trial motions as well.

• The exhibit has remained concealed from the public because it was filed with the designation Confidential. I have asked the court spokesman four times for the source and meaning of the designation. He doesn’t know. He tells me he has asked Judge Cahill but that Judge Cahill has not as yet responded.

• Both Thao’s motion and Cashill’s column raise an important issue that needs to be resolved on a full public airing of the facts.

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