The State’s Strange Motion for Continuance in the Derek Chauvin Trial

This post is part of a series on the George Floyd death and the ensuing trial of the officers. On December 31, 2020, the prosecution filed a Motion for Continuance in the Derek Chauvin trial. The main document in the Motion for Continuance states the following:

Please take notice that on January 7, 2020, at 3:00 p.m., or as soon thereafter as counsel can be heard, the State will bring the following motion:
To continue the trial of these matters to Monday, June 7, 2021.

This motion is based on the State’s Memorandum In Support Of Motion For Continuance Of Trial, the Affidavit of Dr. Ezekiel Emanuel, and all the files, records, and proceedings herein.

This motion is…. ….strange. And I need to explain why.

Why the State Rarely If Ever Asks for a Continuance

The state never asks for continuances because the state is always in control of the schedule. They have a big team of investigators who find information (they are called “the police”). They decide when to bring the charges. With probable cause, they can get search warrants and literally take evidence by force if they need to. They have a LOT of power. Pretty much the only thing that stands in their way is the 4th and 5th Amendments and the facts themselves.

There is a second reason why the prosecution rarely if ever asks for a continuance. That reason comes from the Constitution.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. (The Eighth Amendment to the U.S. Constitution)

Now, we covered some aspects of this issue of a “public” trial in the last post. Just because you have a “right” to a public trial doesn’t mean you get one. Often, defendants want very private trials where they admit their guilt and get it over with. But if a defendant wants a public trial, he gets one. Period.

Additionally, a defendant is entitled to a SPEEDY trial. But usually, a defendant doesn’t want one. Why? Because the defendant usually wants the time to build his defense after the prosecution as taken its time to build its case against him.

But how speedy is this speedy trial that the defendant is entitled to? Very quickly. If you are arrested by an officer without a warrant (meaning a judge did not first review evidence and decide there was a good reason to arrest a person), you get 36 hours before you are brought before a judge. In extenuating circumstances, this can be increased to 48 hours. While that’s not very fist in the sphere of the internet, let me just say that in the sphere of the law, that is FAST.

When it comes to the trial itself, that is also a complicated question, because this is a state-level prosecution, and I am not a Minnesota criminal lawyer. However, we can look at the federal law to give a nice rule of thumb on how quickly the trial should come. The relevant statute is 18 U.S.C. § 3161, which is known as the “Speedy Trial Act,” meant to standardize the protections of the eighth amendment speedy trial protections for federal prosecutions. According to that statute, a defendant is entitled to a full trial on the merits in as little as THRITY DAYS from the date he was indicted.

As far back as May 30, 2020, I was making the point that the “speed” that State Attorney Mike Freeman was bragging about is NOT A GOOD THING. This is why. What we are watching (but not seeing reported) is very persuasive evidence that THE STATE’S CASE AGAINST THE OFFICERS IN THE GEORGE FLOYD DEATH IS FALLING APART IN SLOW MOTION.

Now, let’s review the merits of this motion for a continuance.

Memorandum in Support of State’s Motion to Continue the Derek Chauvin Trial

Here is the introduction to the argument of the State for more time:

The State moves for a continuance of the trial until Monday, June 7, 2021. The U.S. Food
and Drug Administration recently provided Emergency Use Authorizations for two COVID-19
vaccines. Emanuel Aff. ¶¶ 23-24. In light of this development, the State believes that moving the
start of this trial to June 2021 would reduce the public health risks associated with conducting the
trial during the COVID-19 pandemic, and would also reduce the likelihood that the trial will be
disrupted by COVID-19 cases among court staff, lawyers, jurors, and witnesses.

Although the State stands ready to try this case on the current trial date of March 8, it
believes that a three-month continuance is in the best interests of public health. The State is
confident that the Court has established appropriate protocols to reduce the risk of COVID-19
transmission in criminal trials conducted in Hennepin County. Nonetheless, this high-profile trial
is unique, and it poses unique public health risks.

In other words, they want to delay trial “because of Covid.”

Also, notice who the expert giving a professional opinion is. Dr. Ezekiel Emmanuel. You’ve probably seen him on TV before. He’s on the right:

Just like you’ve probably seen the Attorney General of Minnesota on TV before:

Um…. ….that’s an odd coincidence.

But beyond mere “coincidence,” let’s remember who Dr. Ezekiel Emmanuel is. According to his affidavit, which you can read in full here, the last time I can say he probably practiced medicine professionally was in 1996, 25 years ago, because in 1997, he became the chair of the Department of Bioethics at The Clinical Center
of the National Institutes of Health. From 2009 to 2011, I served as special advisor for health policy to the Director of the White House Office of Management and Budget in the White House. He’s been a “visiting fellow” (in other words, not a full-time practitioner) at “at numerous universities and medical schools including UCLA, the Johns Hopkins Medical School, the Stanford Medical School, and the New York University School of Law.” Now, that’s a very nice and impressive resume, but regardless, I’d like to point out that this gives him very, very little expertise in the spread of COVID-19.

He’s literally the only expert. Also, is an “oncologist,” which is a cancer and tumor doctor. He is not (and never was) an expert on contagious diseases, virology, infectious disease spread, or anything like COVID. He is an expert in “health policy,” but viruses don’t follow policy. He is a visiting processor at New York University School of Law, but COVID-19 doesn’t care about laws. Why was this man picked to be the expert affiant to support this motion to continue? Has this man even BEEN to Minneapolis?

I have absolutely no clue. Anyway, now let’s hear a word from one of our sponsors:

But let’s go back to the Memorandum in Support of the Motion:

The trial will involve a larger-than-usual number of participants, including four Defendants, their counsel, and dozens of witnesses. It is likely to be the subject of large public demonstrations, which may increase the risk of community spread of COVID-19. And the costs of a COVID-related interruption of the trial are likely to be far higher here than in an ordinary trial. In light of these risks, the State believes that a three-month continuance is appropriate. Such a continuance would “substantially lower” the risks of COVID19 transmission at trial, as “it is likely that tens of millions of Americans—if not 100 million Americans—will receive vaccinations in the three months between March 2021 and June 2021.” Id. ¶ 38. The State therefore respectfully requests that the Court grant the motion.

The argument goes on to state that in March, it is likely that a significant portion of people will not have received the vaccine. Therefore, there is a significant risk of infection in a March trial because — and this is an actual quote:

It is likely to be the subject of large public demonstrations, which may increase the risk of community spread of COVID-19.

Legal Argument of the State for Continuance

The State of Minnesota requests a continuance and cites two cases in the Motion to support their assertion:

The State has met the standard for granting a continuance of the trial. Minnesota law provides that “[a] continuance may be granted by the court . . . upon motion of either the prosecution or defense,” so long as the movant “show[s] sufficient cause for the continuance.” Minn. Stat. § 631.02. Here, there is “sufficient cause”: A three-month continuance of the trial is plainly warranted in light of the FDA’s recent Emergency Use Authorization for two new COVID19 vaccines, which by June 2021 will substantially reduce the public health risks associated with conducting this high-profile trial during a pandemic.

According to the state, the reason that a trial in June is better than a trial in March is for the following reason:

Because the risk of COVID-19 transmission will be “substantially lower” in June 2021 than in March 2021, [citation to Dr. Emmanuel’s affidavit] id. ¶ 38, there is “sufficient cause” for a three-month continuance, Minn. Stat. § 631.02.

Here’s the problem. We have no idea if transmission will be “substantially lower” in June 2021. We have no idea how widespread vaccine dose will be in March or in June. We have no idea if the virus will mutate a new strain that will be resistant to the vaccine. And most importantly, Dr. Ezekiel Emmanuel has absolutely zero expertise on these questions, because he doesn’t know about virology, spread of infectious diseases, and is not involved in the Trump Administration’s handling of the pandemic. I’m sure he’s a very smart individual doing very good work on health policy, but the fact of the matter is, he doesn’t have any special expertise to say that transmission of COVID-19 will be “substantially lower” around the Minneapolis Minnesota courthouse in March. The man doesn’t even live in Minnesota. This is baloney.

But this is two levels of baloney, and we need to take note of it. Dr. Ezekiel Emmanuel is a smart man (I don’t want to pretend that he’s not). Being a smart man, he is smart enough not predict under penalty of perjury something so wildly speculative as a “substantially lower” transmission rate in June of 2021. Here is the actual quote in context from his affidavit:

By June 2021, a COVID-19 vaccine is likely to have been available to millions of people
in the general public. Based on current estimates, it is likely that tens of millions of
Americans—if not 100 million Americans—will receive vaccinations in the three months
between March 2021 and June 2021. It is therefore expected that the risk of community
spread of COVID-19 in June 2021 will be substantially lower than in March 2021.

So…. based on “current estimates” about what is “likely” to happen, it is “therefore expected” that the risk of “community spread” — not the spread to the judge, the jury, the defendants, the prosecutors, or anyone actually participating in the trial, mind you — “will [likely] be substantially lower.”

Ho…. boy. Now, I’m no criminal lawyer in Minnesota, but as someone with a legal reputation of moderate respectability, I wouldn’t file a motion like that in court.

Lackluster Case Law Support for the Motion for Continuance

Finally, the state also cites two cases the support this contention, which you can read in full here. These cases are United States v. Davis and United States v. Sullivan. Here’s the funny thing about this. NONE OF THESE CASES ARE FROM MINNESOTA.

On the one hand, it’s not too crazy to cite a case from a foreign jurisdiction. This is called “persuasive authority.” It means that if you’re litigating something in a state, and a question comes up in the courts that no one in this state has decided, courts often go to other nearby states to help them make the right call. It is called “persuasive authority” rather than “binding” authority, because there is a good reason to have consistent rules in the United States, even though the requirements of what a judge must decide come from their own jurisdiction.

Here’s why this bothers me. I am no Minnesota lawyer, but I would be SHOCKED if there is no case law on Minn. Stat. § 631.02. Why are they citing to these cases? Well the answer is pretty clear. These are two cases where COVID-19 affected the trial. That’s pretty much it.

United States v. Davis involves a “class A misdemeanor.” In case you don’t know what that is, let me just say it is WAAAAY less of a big deal than “Second Degree Murder.” It is from North Carolina. But note the very significant quote from that case:

With no vaccine ready for market yet, this court finds that the trial restrictions are not likely to be eased at any point for the remainder of the year. Given the posture of the case, the court finds that exclusion of 180 days from the speedy trial calendar must be imposed due to the pandemic and the limitation on safe space to hold a trial to a jury of twelve persons as required. Neither party objects to the exclusion from the speedy trial clock of 180 days. . . . The court finds that the ends of justice served by the granting of a continuance of the trial in this case outweigh the best interests of the public and the defendant in a speedy trial. . . . The court further finds that empaneling a jury would be difficult during the remainder of 2020, and that other criminal cases awaiting trial for Defendants on bond or in custody must be given trial priority access to the limited facilities available.

In contrast to that situation, there IS a vaccine that is ready for market. It appears one side IS objecting (as the state’s Motion for a Continuance isn’t a joint motion). The “Speedy Trial Act” which has a provision on how to delay a trial isn’t the law in Minnesota. And the defendants in this case ARE on bond and WERE in custody, and therefore would receive “trial priority access.” In other words, this is a baloney citation.

Additionally, we have United States v. Sullivan. In this case, Sullivan was indicted by a grand jury in the Northern district of California. He was indicted for obstructing proceedings of the Federal Trade Commission in violation of 18 U.S.C. § 1505. The reason this case was cited was to show that if grand jurors were excluded from the pool of people who were used to indict Sullivan, it would have an effect on his right to a fair trial. The judge did not rule that he did not have a fair grand jury indictment. Instead, it merely stated that it is possible that this was the case, and therefore ordered that the criteria by which the grand jurors were selected be revealed to the defense (deliberations of grand juries are usually not open to the public at all).

I’m no expert on the Federal Trade Commission or the specific legal issues relating to grand juries, but I do at least know that this case is WAAAAAY different from the requirements of Minn. Stat. § 631.02. It’s not necessarily “totally irrelevant” as a case. But since this is literally ONE HALF of the legal foundation for this motion, I think it still qualifies as baloney citation.

The OTHER Motion for a Continuance

But oh boy, does it get worse. You see, the prosecution is asking for a continuance, but they weren’t the only people to ask for a continuance in this trial. On December 18, 2020, the defense asked for a continuance, because they thought that the State was violating discovery violations.

The Defense’s motion for a continuance had an affidavit of the attorney for Derek Chauvin. You can read it here. Here is what he is complaining about with the discovery problems of the Prosecution:

7. With every single round of discovery that has been disclosed there have been numerous problems and issues involving the manner in which the state disclosed it.

a. Each round of disclosure has consisted of single, merged PDF files. The pages of these single file documents number in the 1000s.

b. Approximately 75% of the PDFs provided by the state are not digitally searchable. In order to create a searchable file, it is necessary to go through a time-consuming process to convert the original PDF to a .tif file and then reconvert the .tif file to a new PDF and then subsequently process the new PDF file through an optical character recognition (OCR) program.

c. The PDF files are in absolutely no discernable order. It appears as if the state has printed the reports, shuffled them like a deck of cards, and scanned them back into the computer to be disclosed.

9. Based upon my past experience involving both officer-involved critical incidents, as well
as other cases where the BCA has been the primary investigative agency, I am aware that
the manner by which the BCA provides their investigative materials is wholly and
completely inconsistent with the manner in which the state has provided discovery to the
defense in this case.

These complaints go on in detail for seven pages. These were the reasons that Derek Chauvin and Thao’s attorney’s asked for a continuance. You can read the state’s response to Thao’s motion here. You can read the state’s response to Chauvin’s Motion here, in which the state basically agrees that all of the things that the attorney says are true.

It is unreasonable and unrealistic to think that all investigation and preparation of reports in a complex murder case involving four defendants would be all finished within two months of the murder, and nothing further would be done. . . .Chauvin next complains about the form of the disclosures. Nelson Aff. 3-5. The manner in which the State discloses material in this case is necessitated by the ongoing nature of this complex case in light of discovery deadlines. It is not possible to wait until a “cohesive and coherent case file” exists. See Nelson Aff. 6.

Yeah… but here’s the reason it “unreasonable and unrealistic” to think that the investigation would be done two months after the murder. There is a reason it is not possible to wait until a “cohesive and coherent case file” to provide Chauvin with the documents.

IT”S BECAUSE YOU ARRESTED HIM FOUR DAYS AFTER THE EVENT, AND BEFORE YOU HAD EVEN COMPLETED THE AUTOPSY OF GEORGE FLOYD. If only someone would have told you that “speed” in prosecution isn’t a good thing!

But anyway…. back to the state agreeing with Chauvin’s lawyers, but calling it justified:

Chauvin asserts that the pdf files are not searchable, and must be converted to tif files, then
converted back to pdfs, and then run through an OCR program to be searchable. Nelson Aff. 3. It
is not clear why Chauvin has to do it this way.
The pdf files in Adobe are searchable. There is no
need to convert the pdf files to tif files or run them through an OCR program to make them
searchable. The State agrees that running the pdf files through an OCR program is time
consuming. Indeed, one of the reasons the State does not run the pdf files through an OCR program
before disclosing them to the defense is the amount of time it takes
– it would be difficult to
promptly disclose the files if the State had to wait for that process to finish and then reorganize it
in the fashion he prefers before disclosing the material. . . . Chauvin next asserts that the records are in no discernible order. Nelson Aff. 3-4. But the records are in the order they were received.

Guys…. read that again. “Chauvin next asserts that the records are in no discernible order. But the records are in the order they were received.” Yeah. That’s called “No discernible order.” Normally, when a lawyer asks for “1. all medical records” and “2. all billing documents,” and “3. all insurance documents,” he expects them to be grouped into those 1, 2, and 3 categories. The state here is AGREEING that they dumped 80,000 pages of undifferentiated materials on the defendant. But they are saying they shouldn’t complain, because they delivered these documents “as soon as they could.”

But here’s the key thing. The Defense isn’t asking for a continuance OF THE TRIAL. They are asking for a continuance of the discovery schedule so that their experts can provide the proper documentation for the defense. The documents as for a “reorganization of the case file,” but not a delay in the trial itself.

The Hypocritical Part of the Present State’s Motion for Continuance

But this post isn’t about this past discovery dispute (which, let’s be honest, is pretty dirty). I’m including this detail because of the following footnote in the PRESENT motion for a continuance:

The State opposes Chauvin’s and Thao’s motions for a continuance to the extent they are
predicated on allegations of discovery violations by the State. As the State has explained, the State
has not violated its discovery obligations. See State’s Response to Def. Thao’s Mot. for Sanctions
and Hearing Regarding Discovery Violations by State (Dec. 18, 2020)

In other words, the State is saying they “didn’t do anything wrong” and there is not “sufficient cause” for a continuance to Derek Chauvin and and Toa Thao when they are trying to sort through “80,000 pages” of documents and “300 gigabytes” of video and photographic evidence, randomly amalgamated into non-searchable files does NOT meet the standard of “sufficient cause,” but “COVID” does meet the standard.

They’re saying “We oppose the motion to give your experts more time to prepare your defense” but at the same time, they are saying “Even though we started this whole mess and bragged about the ‘speed’ with which we did it, we now need to delay the entire trial because…. um…. COVID.”

Baaaaaaaaloney.

Conclusion

Now, I could be wrong on this one. I do not know the actual mindset of the Prosecution in this one. Maybe they REALLY ARE worried about the mass spread of COVID that will happen if large demonstrations show up outside the courthouse. Maybe they REALLY ARE hesistant to ask crowds to disperse around that courthouse because the first amendment really is important. Maybe these are very real concerns.

But I doubt it.

Instead, I think what is really going on is that THE PROSECUTION’S CASE IS FALLING APART AND THEY KNOW IT AND THEY’RE TRYING TO SALVAGE IT.

And for the record, people, George Floyd tragically died on May 25, 2020. On May 29, 2020, I published my first breakdown of all the video evidence, at the same time that Derek Chauvin was arrested. On May 30, I showed how the prosecution’s case had SERIOUS problems with it. On June 8, 2020, Derek Chauvin was indicted for third degree murder (a charge that has since been dismissed). That’s when the prosecution got itself into this problem.

What we’re watching is the slow motion disintegration of the case. Have you seen this reported? I haven’t. This shouldn’t be the case. I’m open for interviews. Hit me up. Comment below, and we’ll spread the word.

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