No.

A21-1228
October 7, 2022

STATE OF MINNESOTA

IN COURT OF APPEALS

State of Minnesota,

Respondent,
vs.

Derek Michael Chauvin,

Appellant.
_____________________________________________________

APPELLANT DEREK CHAUVIN’S REPLY BRIEF

_____________________________________________________

Minnesota Attorney General’s Office Mohrman, Kaardal & Erickson, P.A.

Keith Ellison William F. Mohrman, Atty. no. 168816
445 Minnesota Street, Suite 1400 150 South 5th Street, Suite 3100
Saint Paul, MN 55101-2131 Minneapolis, MN 55402
Telephone: (651) 296-3353 Telephone: (612) 341-1074
Attorneys for Respondent Email: [email protected]
Attorneys for Appellant
 TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iii

ARGUMENT .................................................................................................................................. 1
A. The Unprecedented Pre-Trial Publicity Coupled with Threats of Violence to the
Courthouse Required a Change of Venue. ..............................................................................1

1. The District Court Was Required to Presume Prejudice From Adverse Publicity
and Threats of Violence to the Jury and Community as a Result of the Floyd
Riots. .................................................................................................................................2

a. The Size of the Jury Pool Did Not Alleviate the Prejudice. .......................................5

b. Pretrial Publicity Was Pervasive and Prejudicial........................................................5

c. There Was No Sufficient Cooling Period. ..................................................................5

d. The Jury’s Conviction on All Counts Lends Itself in Hindsight That

Prejudice Should Have Been Presumed. .....................................................................6

e. The Threats of Physical Violence to the Jury and Community Demonstrates

Actual Prejudice. .........................................................................................................6

2. The District Court Abused Its Discretion by Denying Chauvin’s Motion to

Change Venue Based on Voir Dire Testimony of Actual Jurors Demonstrating
Actual Prejudice. ...............................................................................................................7

3. The Harm Done by Refusing to Change Venue Might Have Been Mitigated Had
the Court Not Abused Its Discretion in Leaving Jurors Unsequestered. ..........................9

4. The District Court Abused Its Discretion by Accelerating Chauvin’s Trial When
It Should Have Delayed to Allow for a Cooling Period. ................................................10

B. The Court Abused Its Discretion By Denying a Schwartz Hearing to Investigate

Juror Misconduct, Given Evidence of False Voir Dire Testimony. .....................................11

C. The District Court Erred by Allowing an Impossible-to-Prove Third-Degree Murder

Charge to Become Part of Chauvin’s Trial Because It Wrongly Permitted the State
to Prejudicially Present Evidence That Was Not Probative of the Provable Charges. .........14

D. Chauvin’s Conviction Should Be Reversed Because Police Officers Cannot Be

Convicted for Felony-Murder Under Minnesota Law. .........................................................14

E. Chauvin’s Conviction Should Be Reversed Because the Judge Allowed Cumulative

Opinions on the Use of Force. ..............................................................................................17

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F. The Court Improperly Excluded Evidence of MPD Training Materials Establishing
That MPD Trains Officers to Put Their Knees on the Back of Suspects Resisting
Arrest.....................................................................................................................................19

G. Morries Hall’s Exculpatory Testimony or Statement Should Have Been Admitted. ...........21

H. Chauvin’s Conviction Should Be Reversed Because Of Prosecutorial Misconduct

from Discovery through Closing Argument. ........................................................................21

I. Chauvin’s Conviction Must Be Reversed as Full Review Is Impossible Because the

Court’s Failure to Transcribe the Entire Proceedings and Refusal to Supplement the
Record Violates Due Process. ...............................................................................................22

J. Cumulative Errors Rendered the Trial “Structurally Defective.” .........................................23

K. Chauvin’s Sentence Should be Reduced to the Presumptive Range. ...................................24

CONCLUSION ............................................................................................................................. 25
Certificate of Compliance with Minn. R. App. P. 132.01 ........................................................ 27

ii
 TABLE OF AUTHORITIES

Cases

Dietz v. Bouldin, 579 U.S. 40 (2016) ................................................................................ 10

Frank v. Frank, 409 N.W.2d 70 (Minn. App. 1987) ......................................................... 11

Graham v. Connor, 490 U.S. 386 (1989) .......................................................................... 16

Harris v. Stovall, 212 F.3d 352 (6th Cir. 1999) .................................................................. 4

In re Application of Olson for Payment of Servs., 648 N.W.2d 226 (Minn.

2002) .................................................................................................................................. 11

In re Welfare of C.R.M., 611 N.W.2d 802 (Minn. 2000) .................................................. 16

Irvin v. Dowd, 366 U.S. 717 (1961) .................................................................................... 2

Johnson v. United States, 520 U.S. 461 (1997) ................................................................. 20

Lozano v. State, 584 So. 2d 19 (Fla. Dist. Ct. App. 1991) .................................................. 7

Mu'Min v. Virginia, 500 U.S. 415 (1991) ............................................................................ 2

Nevers v. Killinger, 169 F.3d 352 (6th Cir. 1999) ............................................................... 4

Nevers v. Killinger, 990 F. Supp. 844 (E.D. Mich. 1997) ........................................... 4, 8, 9

Patton v. Yount, 467 U.S. 1025 (1984)................................................................................ 2

Rideau v. Louisiana, 373 U.S. 723 (1963) ...................................................................... 2, 5

Schwartz v. Minneapolis Suburban Bus Co., 104 N.W.2d 301 (Minn. 1960) ............ 11, 13

Sheppard v. Maxwell, 384 U.S. 333 (1966) .................................................................... 2, 9

Skilling v. United States, 561 U.S. 358 (2010) ........................................................... passim

State v. Benedict, 397 N.W.2d 337 (Minn. 1986) ............................................................. 11

State v. Bennett, No. C9-96-2506, 1997 WL 526313 (Minn. App. Aug. 26,
1997) .................................................................................................................................. 24

State v. Cermak, 344 N.W.2d 833 (Minn. 1984) ............................................................... 24

State v. DeShay, 669 N.W.2d 878 (Minn. 2003) ............................................................... 18

iii
State v. Dorn, 887 N.W.2d 826 (Minn. 2016) ....................................................... 15, 16, 17

State v. Duncan, 608 N.W.2d 551 (Minn. App. 2000) ..................................................... 23

State v. Larson, 281 N.W.2d 481 (Minn. 1979) .......................................................... 11, 19

State v. Lee, 494 N.W.2d 475 (Minn. 1992)...................................................................... 24

State v. Mastrian, 171 N.W.2d 695 (Minn. 1969) ............................................................... 9

State v. McCray, 753 N.W.2d 746 (Minn. 2008) .............................................................. 22

State v. Morgan, 246 N.W.2d 165 (Minn. 1976) ................................................................ 9

State v. Morrow, 834 N.W.2d 715 (Minn. 2013) .............................................................. 21

State v. Noor, 964 N.W.2d 424 (Minn. 2021) ................................................................... 14

State v. Rourke, 681 N.W.2d 35 (Minn. App. 2004) ......................................................... 24

United States v. Blom, 242 F.3d 799 (8th Cir. 2001) .......................................................... 7

United States v. Hasting, 461 U.S. 499 (1983) ................................................................. 23

United States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998) ................................................ 3

United States v. Petters, 663 F.3d 375 (8th Cir. 2011) ....................................................... 2

Ward v. El Rancho Manana, Inc., 945 N.W.2d 439 (Minn. Ct. App. 2020) .................... 11

Statutes

Minnesota Statutes §486.02 ............................................................................................... 23

Minnesota Statutes §609.02 ............................................................................................... 15

Minnesota Statutes §609.06 ............................................................................................... 15

Minnesota Statutes §609.066 ............................................................................................. 15

Minnesota Statutes §609.19 ............................................................................................... 15

Minnesota Statutes §609.223 ............................................................................................. 15

Minnesota Statutes §629.33 ............................................................................................... 15

iv
Other Authorities

Minn. Sent. Guidelines 2.B ............................................................................................... 24

Rules

Minn. R. Civ. App. P. 110.03 ............................................................................................ 22

Minn. R. Civ. P. 26.03 ......................................................................................................... 9

Minn. R. Civ. Pro. 110.03.................................................................................................. 22

Minn. R. Crim. P. 25.02 ................................................................................................ 1, 10

Minn. R. Evid. 403 ...................................................................................................... 17, 19

Minn. R. Evid. 606(b) ........................................................................................................ 12

Minn. R. Evid. 804 ............................................................................................................ 21

v
 ARGUMENT

A. The Unprecedented Pre-Trial Publicity Coupled with Threats of Violence to

the Courthouse Required a Change of Venue.

The Sixth Amendment “secures to criminal defendants the right to trial by an

impartial jury.” Skilling v. United States, 561 U.S. 358, 377 (2010). To uphold this right,

Minnesota law requires a district court to grant a motion for a continuance or a change of

venue “whenever potentially prejudicial material creates a reasonable likelihood that a

fair trial cannot be had. Actual prejudice need not be shown.” Minn. R. Crim. P. 25.02

subd. 3. The District Court abused its discretion by failing to transfer venue to another

Minnesota district where due process was possible.

Pretrial publicity coupled with threats of violence poisoned the jury against

Appellant Derek Chauvin (“Chauvin”). Appellant’s Brief 6–12 (outlining local daily

media coverage from day of events to the start of trial); id. at 12–22 (discussing protests

at the courthouse during voir dire and trial as well as potential and actual juror concern

for personal and local public safety in the event of a Chauvin acquittal); id. at 3–5

(summarizing riots in response to the events in question in what was the second-most

destructive riots in American history that caused $500,000,000 in property damage and

two deaths in the local Hennepin County area).

U.S. Supreme Court precedent directly contradicts the State’s argument that juror

prejudice can be presumed. Respondent’s Brief 14–21. The Supreme Court established

two tiers regarding the prejudicial effect of pretrial publicity: (1) “whether pretrial

publicity was so extensive and corrupting that a reviewing court is required to presume

1
unfairness of constitutional magnitude” and (2) in cases without presumed prejudice

“whether the voir dire testimony of those who became trial jurors demonstrated such

actual prejudice that it was an abuse of discretion to deny a timely change-of-venue

motion.” United States v. Petters, 663 F.3d 375, 385 (8th Cir. 2011) (distilling Skilling,

561 U.S. at 377–99). The District Court erred on each tier.

1. The District Court Was Required to Presume Prejudice From Adverse

Publicity and Threats of Violence to the Jury and Community as a Result
of the Floyd Riots.

Skilling held under the first tier that prejudice is presumed when the community

from which jurors are drawn is sufficiently poisoned either by adverse publicity or the

effects of the very events at issue – in this case the second worst riots in U.S. history.

Presumed prejudice requires changing venue because voir dire cannot perform its usual

function of securing a fair and impartial jury. Mu'Min v. Virginia, 500 U.S. 415, 429-30

(1991); Patton v. Yount, 467 U.S. 1025, 1031-33, 1040 (1984); Sheppard v. Maxwell, 384

U.S. 333, 362-63 (1966); Rideau v. Louisiana, 373 U.S. 723, 726-27 (1963); Irvin v.

Dowd, 366 U.S. 717, 725-28 (1961). These cases hold that juror promises to be impartial

do not overcome this presumption. Patton, 467 U.S. at 1031 (“[A]dverse pretrial

publicity can create such a presumption of prejudice in a community that the jurors'

claims that they can be impartial should not be believed.”).

First tier de novo1 analysis of presumed prejudice “requires this court to evaluate

the complained-of publicity, as well as the circumstances surrounding that publicity, and

1
The State suggests ignoring and abandoning the U.S. Supreme Court’s two-tiered
approach to apply abuse of discretion analysis to both tiers. Respondent’s Brief 17 n.3.

2
to determine whether a reasonable juror exposed to such publicity could remain impartial,

or whether the publicity was of such a nature as to render impartiality impossible.”

United States v. McVeigh, 153 F.3d 1166, 1179 (10th Cir. 1998). Skilling set forth four

non-exclusive factors to analyze whether prejudice should be presumed: (1) the size of

the jury pool, (2) the presence of blatantly prejudicial media coverage, (3) the years-long

cooling period between the events at-issue and the trial, and most importantly, (4) the fact

that the jury acquitted Skilling of nine insider-trading counts—far from an overwhelming

victory for the state—demonstrated that the jury could fairly apply the law to the facts.

Skilling, 561 U.S. at 382–84. Here, the additional circumstance of violent threats to the

courthouse and community should also factor into the analysis. Because hindsight is

necessary for first-tier presumed prejudice analysis (particularly regarding the jury

verdict factor), the appellate court must review de novo. Of the Skilling factors, only the

size of the jury pool could possibly weigh in-favor of the State. With the biased media

coverage, the Floyd riots, the Brooklyn Center riots during the trial, the lack of cooling

period, and legally-impossible conviction on all charged counts, Chauvin’s case lands in

the company of extreme cases where publicity went beyond the bounds of mere news

media and had a physical effect on the venue community such that voir dire was impotent

and prejudice is presumed. Id. at 381.

The extent and nature of the pretrial publicity must be examined before factoring

in other surrounding circumstances. The media publicity was pervasive, and

overwhelmingly hostile to Chauvin and police in general. The pretrial publicity was

constant and overwhelming from May 25, 2020 through trial. The major media outlets in

3
the Twin Cities had coverage regarding the case literally every day from May 26, 2020

until trial concluded. The coverage glorified Floyd and demonized Chauvin.

https://www.startribune.com/memorial-for-george-floyd-looks-ahead-to-what-s-

next/571016152/. The Minneapolis Police Chief and Minnesota’s head of the

Department of Public Safety called the incident a murder (a legal conclusion) on June 4,

2020 in conjunction with announcing the firing of Chauvin.

https://m.startribune.com/police-chief-derek-chauvin-knew-what-he-was-

doing/571443282/. Pretrial publicity of the firing of a police officer on the heels of an

event giving rise to criminal charges is a significant factor in finding that prejudice is

presumed. Nevers v. Killinger, 990 F. Supp. 844 (E.D. Mich. 1997); Nevers v. Killinger,

169 F.3d 352, 372–73 (6th Cir. 1999) abrogated on other grounds by Harris v. Stovall,

212 F.3d 352, 372–73 (6th Cir. 1999). Numerous news stories detailed that Chauvin

falsely had his knee on Floyd’s neck thereby choking Floyd. Black Lives Matter began a

campaign based on the slogans “get your knee off our neck” and “I can’t breathe” all

suggesting that Chauvin caused Floyd’s death by cutting off the airway in his neck and

causing Floyd to suffocate. https://www.startribune.com/memorial-for-george-floyd-

looks-ahead-to-what-s-next/571016152/. This was not simply pretrial publicity regarding

the facts of the case - the pretrial publicity held up Chauvin as the symbol of police

brutality.

After examining the extent and nature of publicity, first-tier analysis looks at the

circumstances. Skilling looked to size of jury pool, the pervasiveness of the pretrial

4
publicity, time between events and trial, and the actual jury verdict. Here, at least three

of the four weigh in favor of finding prejudice should have been presumed.

a. The Size of the Jury Pool Did Not Alleviate the Prejudice.

Skilling noted that the 4,500,00 population size of Houston Texas mitigated

against prejudice because jurors could be found who had not been subject to the

publicity. However, at footnote 15, Skilling relied on a survey that found over 66% of the

respondents had not heard of the defendant Skilling. Here, every seated juror, and

virtually every juror involved in voir dire, knew of the riots and Chauvin and Floyd

specifically.

b. Pretrial Publicity Was Pervasive and Prejudicial.

The overwhelming media coverage had exposed the jurors—literally every day—

to news demonizing Chauvin and glorifying Floyd was more than sufficient to presume

prejudice in the Hennepin County community. This was not objective factual coverage.

That publicity highlighted the unique pressures by the physical proximity to the events,

the responding protests, and property destruction in Hennepin County.

c. There Was No Sufficient Cooling Period.

There was no sufficient cooling period in this case to let the publicity or the

physical pressure on the courthouse to simmer down. Skilling, 561 U.S. at 383

(“[U]nlike Rideau and other cases in which trial swiftly followed a widely reported

crime, over four years elapsed between Enron's bankruptcy and Skilling's trial” (citing

e.g., 373 U.S., at 724)). In Rideau, it was less than three full months between events and

trial commencement. As discussed below, the District Court not only abused its

5
discretion in refusing to grant a continuance, the District Court actually accelerated the

trial such that there was less than ten full months between events and jury voir dire. The

timeline was much closer to Rideau than Skilling. Meanwhile, publicity on Chauvin

continued most every day and physical pressure on the courthouse continued.

d. The Jury’s Conviction on All Counts Lends Itself in Hindsight That

Prejudice Should Have Been Presumed.

As discussed below, Chauvin should never have been charged with third-degree

murder. That the jury could not acquit on that crime is a sign on review that fair trial was

impossible in the Hennepin County venue and that prejudice should have been presumed.

Three of the four Skilling circumstance factors weigh in favor of presuming prejudice,

and the fourth—the size of the jury pool—is not alleviated under these facts.

e. The Threats of Physical Violence to the Jury and Community

Demonstrates Actual Prejudice.

Finally, threats of physical violence were not at issue in Skilling. Those threats are

the predominant factor here for presuming prejudice. Threats included the second worse

riots in the U.S. history, physical violence to the officer’s attorneys at pretrial hearings,

extensive security at the Courthouse during the trial due to the threats of physical

violence, riots in Brooklyn Center during trial, and elected Congresspersons egging on

the violence. The jurors and Judge Cahill’s own statements confirm the actual threats of

rioting. The effects of the events at issue were threats that heavily weigh to presume

prejudice, and as discussed below, these effects also contributed to actual prejudice by

the jury. Chauvin should never have been tried in Hennepin County.

6
 2. The District Court Abused Its Discretion by Denying Chauvin’s Motion to
Change Venue Based on Voir Dire Testimony of Actual Jurors
Demonstrating Actual Prejudice.

Under Skilling’s second tier, the District Court abused its discretion by denying

Chauvin’s motion to change venue. On the second tier, courts “independently evaluate

the voir dire testimony of the impaneled jury in order to determine whether an impartial

jury was selected, thus obviating the necessity for a change of venue.” United States v.

Blom, 242 F.3d 799, 804 (8th Cir. 2001). In this case, voir dire revealed Hennepin

County was not a fair district to try Chauvin. In fact, actual juror misconduct occurred.

Had voir dire revealed information Juror 52 (Brandon Mitchell) concealed, Mitchell

would have been struck for-cause. The State’s contention that voir dire must have been

fair simply because Chauvin declined to use the three additional peremptory strikes does

not cover the underlying problem in this case, that jurors were operating under threat to

their communities. Respondent’s Brief 16.

Juror prejudice was apparent throughout the voir dire process where jurors

expressed concern for their safety and riots breaking out if they acquitted Chauvin. Juror

concerns are laid out in Chauvin’s original appellate brief. Appellant’s Brief 13–22. For

those venire members not actually selected to serve, their voir dire testimony illuminates

the pretrial prejudice of the venue.

Seated jurors actually stated their concerns during voir dire. Id. There are few

cases involving such violent threats in the event the jury acquits the defendant. Those

rare cases—which all involved defendant police officers—required transfer of venue.

Lozano v. State, 584 So. 2d 19, 22–23 (Fla. Dist. Ct. App. 1991) (Miami police officer

7
killed two black males fleeing police); Nevers v. Killinger, 990 F. Supp. 844 (E.D. Mich.

1997) (police officer killed a suspect). Nevers said it best:

The Court cannot imagine a more prejudicial extraneous influence than that
of a juror discovering that the City he or she resides in is bracing for a
riot—including activating the National Guard and closing freeways—in the
event the defendant on whose jury you sit is acquitted.

Id. at 871.

The State argues the Twin Cities were “calm leading up to and throughout the

proceedings.” Respondent’s Brief 19. This is absurd. “Calm” is not evidenced by the

necessity to surround the courthouse with concrete block, barbed wire, two armored

personnel carriers and a squad of National Guard Troops throughout the trial.

Appellant’s Brief 29–31. “Calm” is not evidenced by Governor Walz deploying National

Guard troops around the Twin Cities five days prior to jury deliberations.

https://www.startribune.com/as-chauvin-verdict-looms-military-presence-in-twin-cities-

unsettles-some-reassures-others/600047529/. “Calm” is not evidenced by barricades and

barbed wire going up around the metropolitan area. The Twin Cities were not “calm” –

they were bracing for a riot in the event Chauvin was acquitted. Id. As local newspaper

Star Tribune reported:

As the end of the Derek Chauvin trial draws closer, state and local officials
have ordered a show of force that some say has transformed the Twin Cities
into an eerie, alarming, almost alternate-reality version of their hometowns.
Thousands of armed Guard members in fatigues are stationed on street
corners — in front of libraries, laundromats, pharmacies, restaurants, office
buildings and grocery stores. Businesses have boarded up windows, public
buildings are surrounded by razor wire and for several nights last week
curfews forced Twin Cities residents indoors after dark.

8
Id. The jury was not sequestered until after closing arguments on April 19, 2021.

Appellant’s Brief 30. Just as in Nevers, the circumstances of Chauvin’s trial were the

height of prejudicial extraneous influence. Nevers, 990 F. Supp. at 871.

First-tier analysis shows that the District Court should have presumed prejudice

and transferred venue. On the second tier analysis, voir dire highlighted that pretrial

publicity had been so pervasive in the community that the District Court abused its

discretion by failing to transfer venue. A new trial in a fair venue should be ordered.

3. The Harm Done by Refusing to Change Venue Might Have Been

Mitigated Had the Court Not Abused Its Discretion in Leaving Jurors
Unsequestered.

Jury sequestration usually occurs at the discretion of the Court. Minn. R. Civ. P.

26.03, subd. 5(1); State v. Morgan, 246 N.W.2d 165, 168 (Minn. 1976). However,

“[s]equestration must be ordered if the case is of such notoriety or the issues are of such a

nature that, in the absence of sequestration, highly prejudicial matters are likely to come

to the jurors’ attention.” Id. at subd. 5(2) (emphasis added). Once a court finds that

jurors have been exposed to prejudicial materials—the rule only requires a likelihood

such matters “come to jurors’ attention”— the court’s discretion is removed and

sequestration must be ordered sua sponte. State v. Mastrian, 171 N.W.2d 695, 707

(Minn. 1969); Sheppard v. Maxwell, 384 U.S. 333, 363 (1966).

The quotations above answer the question whether sequestration should have been

ordered here. This was a notorious case dealing with explosive issues—the very

foundations of law enforcement and race relations in the United States, such that

sequestration was required. While the District Court ordered sequestration only for

9
deliberations, this accomplished nothing—in fact, at common law, juries were always

sequestered for deliberations. Dietz v. Bouldin, 579 U.S. 40, 52 (2016). Due to the

failure to sequester, jurors were exposed to the City of Minneapolis paying Floyd’s

beneficiaries $27,000,000 to settle their claims against Chauvin, the Brooklyn Center

riots, and the Cities bracing for further riots. If venue was not changed, sequestration

should have been ordered for the entire case.

4. The District Court Abused Its Discretion by Accelerating Chauvin’s Trial

When It Should Have Delayed to Allow for a Cooling Period.

A court must grant a continuance if there is “reasonable likelihood that a fair trial

cannot be had.” Minn. R. Crim. P. 25.02 subd. 3. The District Court already failed to

grant physical distance between the events and the trial, but a continuance at least would

have offered temporal distance to allow strong community feeling to “cool.” Skilling,

561 U.S. at 383. Here, instead of delay, the court hastened Chauvin’s trial. The

Minnesota Supreme Court had suspended in person jury trials due to COVID-19. It was

not until March 15, 2021 that the Supreme Court allowed in person jury trials to continue.

Chauvin’s trial started one week earlier on March 8, 2021. Not only did the District

Court accelerate this trial, it did not afford Chauvin’s trial additional time that might have

mitigated the publicity and prejudicial effect in the community arising from riots and

property damage. Chauvin is not asking to “fend off trial indefinitely,” Respondent’s

Brief 21, but rather to continue the trial to a date which would have allowed community

anger to cool. It is not mere speculation to anticipate that allowing a longer, reasonable

10
duration of time would allow the community to feel less of the pressure from fallout from

the Floyd riots. The District Court abused its discretion by refusing to continue the trial.

B. The Court Abused Its Discretion By Denying a Schwartz Hearing to

Investigate Juror Misconduct, Given Evidence of False Voir Dire Testimony.

In addition to pervasive publicity and threats of riots, there was at least one juror

whose conduct poisoned the jury. As a threshold matter, a prima facie case for a

Schwartz hearing was presented before the District Court and the initial appellate brief

preserved the claim in the brief’s argument section. Appellant’s Brief 53. The cases the

State cites in an attempt to dispose of Chauvin’s Schwartz argument held that what counts

is whether an issue was argued in the brief-not whether it was listed in the issues section.

Ward v. El Rancho Manana, Inc., 945 N.W.2d 439 (Minn. Ct. App. 2020); In re

Application of Olson for Payment of Servs., 648 N.W.2d 226, 228 (Minn. 2002).

The District Court abused its discretion in denying a Schwartz hearing which

would have allowed the Court to investigate and establish a record of juror misconduct.

Frank v. Frank, 409 N.W.2d 70, 72–73 (Minn. App. 1987); Schwartz v. Minneapolis

Suburban Bus Co., 104 N.W.2d 301 (Minn. 1960). Schwartz hearings are to be granted

liberally. State v. Benedict, 397 N.W.2d 337, 339 (Minn. 1986). The party requesting a

Schwartz hearing need only supply evidence, which standing alone and unchallenged,

would support finding jury misconduct. State v. Larson, 281 N.W.2d 481, 484 (Minn.

1979). Though there is significant alarming evidence that juror deliberation began from a

position of assuming guilt rather than innocence, and was not based facts set forth at trial,

setting aside misconduct by juror alternates or evidence from deliberations that may be

11
barred by Minn. R. Evid. 606(b), there was abundant evidence for a prima facie case of

juror misconduct. Dkt-570 (Defendant’s Memorandum in Support of Post-Verdict

Motions) 49–53.

Chauvin supplied evidence (which occurred only after the jury verdict) that Juror

52 (Mitchell) lied regarding his views of the case and the extent of his activism. Id.

Mitchell had traveled 1,000 miles to participate in an August 28, 2020 protest march in

Washington D.C. That march used the slogan “Get Your Knees Off Our Necks” in direct

reference to Chauvin and George Floyd. At that march, Mitchell wore a t-shirt with a

photo of Dr. Martin Luther King, Jr. and words saying “BLM * Get Your Knee Off Our

Necks.” Had this come to light at voir dire, it would have allowed Chauvin to evaluate

whether to strike Mitchell for-cause.

In his juror questionnaire, Mitchell was asked “Did you, or someone close to you,

participate in any of the demonstrations or marches against police brutality that took

place in Minneapolis after George Floyd’s death?” Juror Questionnaire 52 at 4.

Mitchell checked “No.” Id. In isolation, this answer to the question specifically about

Minneapolis could have been candid, but this question did not stand alone. Two pages

later, Mitchell was asked: “Have you, or someone close to you, ever helped support or

advocated in favor of or against police reform.” Id. at 6. Mitchell checked “No.” Here,

Mitchell lied. The march Mitchell had traveled 1,000 miles from home mere months

before had this as the first paragraph on its registration page: “Instigated from the protest

movement that has risen up since the police killing of George Floyd, the ‘Get Off Our

Necks’ Commitment March on Washington will be a day of action that will demonstrate

12
our commitment to fighting for policing and criminal justice.” NATIONAL ACTION

NETWORK, Register for NAN’s Commitment March: Get Your Knee Off Our Necks!

https://nationalactionnetwork.net/register-for-nans-march-on-washington-get-your-knee-

off-our-necks/ (last visited October 5, 2022).

That same evidence about the purpose of the march shows Mitchell was lying

when asked: “have you, or anyone close to you, participated in protests about police use

of force or police brutality.” Id. at 8. Mitchell checked “No.” Id. Mitchell answered

“No” to the question “Is there anything else the judge and attorneys should know about

you in relation to serving on this jury.” Id. at 14. Chauvin highlighted the first and last

of these listed questions when presenting the prima facie case of jury misconduct that

should have resulted in grant of a Schwartz hearing. Jury voir dire is to be considered in

context. As raised below, the context illuminates both lies of commission and omission

where had the truth been known, Mitchell would have been struck from the jury for-

cause.

Instead of giving this due consideration, the Court abused its discretion and denied

Chauvin’s Schwartz motion without analysis. Dkt-580-Addendum-27-28. The remedy

for denial of a Schwartz hearing is remand for that hearing to take place so investigation

and a full record may be made. From there, the District Court will have to decide

whether to impeach the verdict for violation of Chauvin’s Constitutional right to a trial by

an impartial jury.

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 C. The District Court Erred by Allowing an Impossible-to-Prove Third-Degree
Murder Charge to Become Part of Chauvin’s Trial Because It Wrongly
Permitted the State to Prejudicially Present Evidence That Was Not
Probative of the Provable Charges.

Chauvin was tried and convicted by the jury of third-degree murder. He never

should have been charged with third-degree murder because Chauvin’s actions were

directed against an individual person. State v. Noor, 964 N.W.2d 424, 438 (Minn. 2021)

Third-degree murder is only possible with an undirected mens rea. Contrary to the

State’s contention, this issue was raised. Respondent’s Brief 36. At the time of post-trial

motions, Noor had not yet been decided. Dkt-570; Dkt-406 (Defendant’s Memorandum

of Law in Support of New Trial and Change of Venue, 3/18/2021). The third-degree

murder charge allowed the State to introduce arguments that the evidence showed

Chauvin’s “depraved mind” which was not relevant to the unintentional second-degree

murder charge. The State argued the look on Chauvin’s face in the video and Chauvin’s

statements to Floyd was evidence of a depraved mind. While it is true the video would

have been admitted regardless, Respondent’s Brief 36–37, the third-degree murder charge

allowed the prosecution to opine on a heightened, prejudicial mens rea for a crime the

law applied to the facts would find impossible. Trial Transcript (“TT”); 5757–61. This

could only serve to inappropriately inflame the passions of the jury and was a structural

error a new trial could fix.

D. Chauvin’s Conviction Should Be Reversed Because Police Officers Cannot Be

Convicted for Felony-Murder Under Minnesota Law.

Chauvin was convicted of second degree felony-murder. Minn. Stat. §609.19.

The predicate felony was third degree assault. Minn. Stat. §609.223 subd. 1. Assault is

14
defined as “the intentional infliction of or attempt to inflict bodily harm upon another.”

Minn. Stat. §609.02 subd. 10 (2). Third degree assault is “[w]hoever assaults another and

inflicts substantial bodily harm.” Minn. Stat. §609.223 subd. 1. Under State v. Dorn,

887 N.W.2d 826, 830-31 (Minn. 2016), the intent element for assault is the intent to

commit the act – i.e., the intent to physically touch someone and not the intent to commit

injury.

As a police officer, Chauvin was statutorily authorized to commit “assaults” to

effect an arrest under Minn. Stat. §629.33—“the officer may use all necessary and lawful

means to make the arrest but may not use deadly force unless authorized to do so under

§609.066.” Minn. Stat. §609.066 defines “deadly force” as “force which the actor uses

with the purpose of causing, or which the actor should reasonably know creates a

substantial risk of causing, death or great bodily harm.” The law authorizes police to

commit “assault” with “reasonable” touches. Minn. Stat. §609.06 subd. 1; Respondent’s

Brief 39. As-applied to police officers, whenever an authorized assault crosses the

“reasonable” territory line and the one touched dies related to that touch, the officer could

then be convicted of felony murder with no heightened mens rea on part of the officer

than that with which they committed the original assaulting touch, which is mere general

intent to touch. There is no requirement that the officer have intent to act unreasonably,

and it would not matter if he did. Graham v. Connor, 490 U.S. 386, 396–97 (1989); see

also Dkt-493 (Jury Instructions). While State v. Dorn holds that assault is not a strict

liability offense as-applied to the everyday citizen, it is as-applied to police officers. 887

N.W.2d 826, 831 (Minn. 2016).

15
 Because police officers are duty bound to “assault” suspects resisting arrest,

Minnesota’s assault statute becomes a strict liability statute for a police officer because

the officer always “intends” to physically touch the suspect, if it is later found that the

touch crossed the line of “reasonableness.” Thus, Chauvin was convicted under a strict

liability standard because the State was not required to prove any intent—i.e., the State

was not required to prove Chauvin intended to inflict bodily injury on Floyd. Strict

liability offenses are disfavored and the legislative intent to impose strict liability must be

clear. In re Welfare of C.R.M., 611 N.W.2d 802, 805 (Minn. 2000). Courts must apply

the rule of lenity in construing any penal statute. Id. Applying lenity would require the

State prove Chauvin intended to inflict “substantial bodily injury” on Floyd when

Chauvin placed his knees on Floyd’s back to restrain Floyd. Because the jury was not

instructed that regarding Chauvin’s “intent” to inflict bodily injury on Floyd, Chauvin’s

conviction must be reversed.

Moreover, in order for a police officer to be convicted of murder, Minnesota

statutes require the officer to be using “deadly force”—force one knows will cause either

death or “great bodily harm.” Putting your knees on the back of a suspect does not create

a “substantial risk of causing, death or great bodily harm.” The State says this is

harmless because “[t]he jury would not have returned a guilty verdict on third-degree

murder and found that Chauvin’s same act did not constitute a special danger to human

life.” Respondent’s Brief 43 (ignoring that the third-degree murder charge should never

have been brought as a guilty verdict was impossible with the law applied to the facts).

16
 Based on these standards, Chauvin cannot be convicted of felony-murder because

he was authorized to arrest Floyd and therefore “touch” Floyd when Floyd resisted arrest.

Because State v. Dorn held the intent necessary to commit an assault is the intent to

“touch,” and police officers must always “touch” suspects who resist arrest, the State has

converted the second-degree murder statute into a strict liability offense where the

underlying offense is an assault. Thus, the State did not have to prove any “intent” with

respect to Chauvin other than the intent to “touch” Floyd which Chauvin was authorized

and duty bound as a police officer to do.

E. Chauvin’s Conviction Should Be Reversed Because the Judge Allowed

Cumulative Opinions on the Use of Force.

The combined testimony of seven officers and experts on reasonable use of force

was unfairly prejudicial as cumulative, and should have been barred by Minn. R. Evid.

403. The seven points from the State’s brief can be summed up into two arguments: (1)

that the various witnesses comprehensively testified from their distinct point-of-view, and

(2) that the District Court could not have abused its discretion because cumulative

evidence is harmless. As to the first argument, the fact each individual witness testifies

from their own point-of-view—which is true of every witness—does not mean the

evidence is not cumulative. Because so many officers were allowed to testify, the State

was able to argue in closing:

You have heard from numerous experts, police use of force experts, the
training department from the Minneapolis Police Department, you've heard
from police officers, street police officers, Sergeant Edwards, Sergeant
Pleoger, right, so you've heard from these people and they have given you
their opinions at various stages as to the reasonableness of the use of force.
But one of the things that all of these police officers effectively agreed to is

17
 that when you look at the question of what would a reasonable police
officer do…

TT; 5791–92.

In fact, the District Court itself expressed its “concern that this is becoming

cumulative” and that allowing another witness to testify on the reasonable use of force

“probably giv[es] more than the State deserves by allowing you to talk about national

standards” TT-4953–54. At that point, the District Court’s attempt to limit the unfairly

prejudicial cumulative effect was nullified because the harm had already been done.

Cumulative expert testimony “dissuade[s] [the jury] from exercising its own

independent judgment.” State v. DeShay, 669 N.W.2d 878, 885 (Minn. 2003). This

negates the State’s second main argument, because by taking away the jury’s independent

judgment in the face of too much expert testimony, the District Court abused its

discretion in a way that did harm Chauvin. State argues use of reasonable force was both

a “central issue” in the case (it was), Respondent’s Brief 34, but that any error arising

from admitting seven cumulative expert opinions on this central issue was harmless. Id.

at 46. The State’s contradictory arguments demonstrate the harm – cumulative expert

testimony on a central issue is not harmless.

The other non-cumulative evidence, Respondent’s Brief 45–46, is not probative of

the reasonableness of a police officer with like knowledge, experience and training.

Without persuading the jury that the use of force was unreasonable, the underlying charge

of assault could not be proven. The problem was not that the State presented any opinion

of reasonableness to try to meet their burden. Rather, it was allowing the State to elicit

18
seven individual “expert” opinions on the reasonableness of Chauvin’s use of force that

was unfairly prejudicial cumulative evidence barred by Minn. R. Evid. 403. Because the

cumulative opinions unfairly prejudiced Chauvin, a new trial should be ordered.

F. The Court Improperly Excluded Evidence of MPD Training Materials

Establishing That MPD Trains Officers to Put Their Knees on the Back of
Suspects Resisting Arrest.

The District Court’s exclusion of the photo from the MPD training manual

showing an officer doing exactly what Chauvin did was highly prejudicial and a serious

error that undermined Chauvin’s right to present the full defense of authorized use of

force by a police officer. Exclusion of such evidence results in a reversal unless the

evidence is found harmless beyond a reasonable doubt, i.e., there is a reasonable

possibility the error complained of may have contributed to the conviction. State v.

Larson, 389 N.W.2d 872, 875 (Minn. 1986). The State’s contention that Chauvin

forfeited this argument is wrong. It is true, as the State highlighted, that Chauvin’s

counsel “agreed” with the District Court that the training photo would be relevant as “an

impeachment question on one hand” but the State misleads this Court by insinuating that

Chauvin’s counsel argued only for impeachment relevance. TT-3694. The fuller context

includes a discussion of the Minneapolis Police Department’s variety of trainings for

officers and that “ultimately it’s part of their training.” TT-3692. Redacting the image

from the training power point that was introduced later was entirely inappropriate. TT-

5277.

As the State admits, whether Chauvin restraining Floyd by putting Chauvin’s

knees on Floyd’s back was a reasonable use of force was the central issue in this case. If

19
the police department Chauvin worked for trained on this method and included a photo in

its training manual showing an officer with his knees on a suspects back, such evidence is

not only highly probative on this issue, it is likely conclusive. The exclusion of this

photo passes the plain error review as (1) error (2) that is plain, (3) affected substantial

rights (the defendant’s ability to present a full defense), and (4) seriously affected the

fairness of the trial. Johnson v. United States, 520 U.S. 461, 467 (1997).

The State also argues this MPD training manual photo should be excluded because

Chauvin failed to prove he personally saw this particular training manual and photo.

However, a police officer’s reasonable use of force is an objective standard – i.e., the

issue is whether what the officer actually did was reasonable - period. A police officer

does not need to prove the officer received training on the actual use of force at issue in

order to introduce the training into evidence. MPD’s training manual evidences it trained

officers to restrain suspects suffering from excited delirium by placing the officer’s knees

on the suspects back including the photo at issue showing an officer doing what Chauvin

did. Would that photo—from the police force Chauvin actually worked for—be

probative on the issue of objectively reasonable use of force? The question answers

itself. As this photo shows what MPD regarded as a reasonable use of force in placing an

officer’s knees on Floyd’s back, excluding this photo was not harmless error. Therefore,

the District Court’s decision on this evidence must be reversed.

20
 G. Morries Hall’s Exculpatory Testimony or Statement Should Have Been
Admitted.

The State correctly concedes that Hall’s statements would have been evidence that

Floyd was under the influence of drugs at the time of his death - Respondent’s Brief 49 –

thereby providing evidence that the drugs in Floyd led to his death. As Hall invoked his

Fifth Amendment right to not testify and successfully quashed the subpoena, Hall became

an unavailable witness under Minn. R. Evid. 804(a)(l)-(2). Thus, Chauvin moved to

subpoena Agent Henning to testify to Hall’s statements under the statement-against-

interest exception to hearsay. Minn. R. Evid. 804(b)(3). The District Court violated

Chauvin’s Constitutional right to present a complete defense and abused its discretion

when it found that admission of the police interview was not permissible under Minn. R.

Evid. 804(b). “When an error implicates a constitutional right,” reversal is required

“unless the State shows beyond a reasonable doubt that the error was harmless.” State v.

Morrow, 834 N.W.2d 715, 729 n.7 (Minn. 2013). The State cannot show that the Court’s

error was harmless beyond a reasonable doubt because the evidence would show Floyd

died of a drug overdose rather than from Chauvin placing his knees on Floyd’s back. A

new trial must be granted.

H. Chauvin’s Conviction Should Be Reversed Because Of Prosecutorial

Misconduct from Discovery through Closing Argument.

Prosecutorial misconduct has been a documented denial of due process towards

the defendant from discovery through closing argument. Perhaps some instances may be

mere mistakes, State v. McCray, 753 N.W.2d 746, 751 (Minn. 2008); Respondent’s Brief

53, but not all, and the District Court abused its discretion by denying Chauvin’s motions

21
and alerts to attempt to ameliorate the prejudice suffered as a result. E.g., Dkt-219; TT-

568–70. In addition to the visible “Black Lives Matter” messaging visible through

prosecution witness’s white button-down shirt, in violation of court order, Appellant’s

Brief 64, the closing and rebuttal arguments were not “mistakes.” They were calculated

to obfuscate the prosecution’s burden of proof and to fall short of the high standard our

court system holds for our prosecutors. Chauvin is not seeking to limit the prosecution to

a “colorless argument,” Respondent’s Brief 57, but insisting, at the minimum, Chauvin’s

defense not to be belittled. TT-5887 (objecting during trial to the repeated belittlement of

the defense case theory as “a number of what I [Mr. Blackwell] call stories.”; Dkt-570;

Appellant’s Brief 65.

I. Chauvin’s Conviction Must Be Reversed as Full Review Is Impossible

Because the Court’s Failure to Transcribe the Entire Proceedings and
Refusal to Supplement the Record Violates Due Process.

The State’s dismissal of Chauvin’s argument on this point hinges on Minn. R. Civ.

Pro. 110.03, but that rule conditions its applicability on lack of report made to the trial

court: “If no report of all or any part of the proceedings at a hearing or trial was made, or

if a transcript is unavailable, the appellant may prepare a statement of the proceedings

from the best available means. . .” Minn. R. Civ. App. P. 110.03. The Rule applies only

if no report of all or any part of the proceedings at trial had been made. Here, a report

was given, so the rule does not apply.

Chauvin’s counsel reported notes of the untranscribed sidebar discussions in an

attempt to supplement the deficiency left by the trial Court’s mystifying choice to decline

to transcribe the entire proceeding in apparent violation of Minn. Stat. §486.02 (requiring

22
a complete verbatim transcript). The District Court set up and ran the proceedings.

Chauvin’s counsel had no choice but to work within those parameters and submitted his

notes as directed by the Court. Dkt-570. From that point, the notes were in the

possession of the District Court, but the District Court did nothing with them. The notes

indicate some of the sidebars (April 2, 9, 6, and 12) included objections on cumulative

opinion testimony. Without sidebar transcripts, it is impossible to review the verbatim

arguments raised and rulings made, or to determine if additional errors were created or

mitigated, thus denying Chauvin the right to fully make a meaningful appeal.

J. Cumulative Errors Rendered the Trial “Structurally Defective.”

As set forth above, the proceedings in this matter were so pervaded by error,

misconduct and prejudice that they were structurally defective. United States v. Hasting,

461 U.S. 499, 508-09 (1983) (certain errors involve “rights so basic to a fair trial that

their infraction can never be treated as a harmless error”). Far from flinging the “kitchen

sink” at this Court, Chauvin has repeatedly outlined numerous due process deprivations.

Several of these errors alone are enough to remand for a new trial. Id. Together, even the

lesser errors add up to a denial of constitutionally guaranteed due process. State v.

Duncan, 608 N.W.2d 551, 551-58 (Minn. App. 2000), review denied (Minn. May 16,

2000) (“when the cumulative effect of numerous errors”—even if, alone, the errors are

harmless—“constitutes the denial of a fair trial, the defendant is entitled to a new trial”).

As here, Duncan noted numerous instances of erroneous admission of evidence and

prosecutorial misconduct as rendering the trial structurally defective. As a result of this

trial being structurally defective, a new trial must be ordered.

23
 K. Chauvin’s Sentence Should be Reduced to the Presumptive Range.

The District Court abused its discretion when sentencing Chauvin by departing

upward to a 270 month sentence, which is nearly double the 150 month presumptive

sentence for one with a criminal history score of zero. The court based this upward

departure on factual findings of abuse of position of trust and authority and particular

cruelty. As-applied to Chauvin, the court’s use of “abuse of authority” is a departure

from its previous uses. Dkt-455. Abuse of authority, while not found in the Minnesota

Sentencing Guidelines, has been recognized by courts primarily always in criminal sexual

or domestic abuse cases. State v. Lee, 494 N.W.2d 475, 482 (Minn. 1992); State v.

Rourke, 681 N.W.2d 35, 41 (Minn. App. 2004); State v. Cermak, 344 N.W.2d 833, 839

(Minn. 1984). None of these involved a police officer. Even the case the Court and State

cite to substantiate a different scenario, State v. Bennett, No. C9-96-2506, 1997 WL

526313, at *3 (Minn. App. Aug. 26, 1997); Dkt-455 (cited at Respondent’s Brief 61), was

characterized by the Court of Appeals as an “abuse[] of position of trust and commercial

authority” (emphasis added) when the defendant, who had a preexisting criminal history

score, shot a taxi cab driver in the back of the head. This is a dramatically different

scenario than Chauvin’s.

The State suggests that criminal history score has no bearing on sentencing.

Respondent’s Brief 63–64. This is not true. Minn. Sent. Guidelines 2.B. (“The

Guidelines provide uniform standards for the inclusion and weighting of criminal history

information.”). Criminal history information is to be weighed, and presumably, would be

reason for an upward departure sentence where appropriate. True enough, the guidelines

24
do not condition “eligibility for aggravating factors upon their criminal history score,”

Respondent’s Brief 64, but when the score is zero, there is nothing else lingering in the

background to weigh towards upward departure. There are only two cases where the

defendant’s criminal history score is zero, and both “abuse of a position of trust or

authority” and “particular cruelty” were cited as aggravating factors. Those cases

involved particularly vulnerable victims—three-year-old children—which is why

particular vulnerability was discussed extensively in the opening brief. Appellant’s Brief

68–69, contra Respondent’s Brief 64. To depart from the regularly used definition of

“abuse of authority” and apply it to police officers is to lay the ground to apply “abuse of

authority” to nearly any scenario involving a lay person and government official. If this

Court affirms the conviction, the Court should remand for sentencing in the presumptive

range.

CONCLUSION

For the reasons set forth above, Chauvin did not receive due process and this

Court should either reverse his conviction, reverse and remand for a new trial in a new

25
venue or remand for re-sentencing.

Dated: October 7, 2022. MOHRMAN, KAARDAL &

ERICKSON, P.A.

/s/ William F. Mohrman

William F. Mohrman, Atty. No. 168816
150 South 5th Street, Suite 3100
Minneapolis, MN 55402
Telephone: (612) 341-1074
Email: [email protected]
Attorneys for Appellant

26
 Certificate of Compliance with Minn. R. App. P. 132.01

I certify that this brief contains 6,911 words and thus complies with Minn. R. Civ.

P. 132.01 subd. 3 (b)(1) because it contains no more than 7,000 words. In making this

certificate, I relied on the word-count function of Microsoft Word 2016, which is the

word-processing software that I used to prepare this brief.

This brief was produced with a proportional typeface and complies with Minn. R.

App. P. 132.01’s typeface requirements.

Dated: October 7, 2022. MOHRMAN, KAARDAL &

ERICKSON, P.A.

/s/ William F. Mohrman

William F. Mohrman, Atty. No. 168816
150 South 5th Street, Suite 3100
Minneapolis, MN 55402
Telephone: (612) 341-1074
Email: [email protected]
Attorneys for Appellant

27
 Certificate of Service

I hereby certify that I served a copy of the following Appellant’s Brief on the

following parties, by using the Court’s e-filing and e-service function. :

Minnesota Attorney General’s Office

Keith Ellison
445 Minnesota Street, Suite 1400
Saint Paul, MN 55101-2131.

I also state that I did not serve a paper copy of the brief on Respondent’s counsel
as the Minnesota Supreme Court Order foregoing the requirement to serve and file
appellate briefs is still suspended due to Covid-19.

/s/ William F. Mohrman

William F. Mohrman

Subscribed and affirmed before me

this 7th day of October, 2022.

/s/Mary Gynild, comm. expires 1/31/2025

Notary Public

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