Closing arguments tomorrow in trial of Derek Chauvin charged in the death of George Floyd

Testimony in the murder trial of former Minneapolis police officer Derek Chauvin ended Thursday with Chauvin invoking his constitutional right not to testify and a prosecution expert briefly taking the witness stand. Jurors are likely to begin deliberating Monday, reported the Minneapolis Star-Tribune.

Closing arguments are scheduled for Monday, moving the trial into its seventh week. Jurors will be immediately sequestered for deliberations as they consider the charges facing Chauvin in the May 25 death of George Floyd — second-degree murder, third-degree murder and second-degree manslaughter.

"I will invoke my Fifth Amendment privilege today," Chauvin told the court Thursday morning. The Fifth Amendment protects against self-incrimination.

Chauvin's brief remarks in response to questions from his attorney, Eric Nelson, and Hennepin County District Judge Peter Cahill were the most he's spoken publicly since kneeling on Floyd's neck for about 9 ½ minutes last year when arresting him for using a fake $20 bill to buy cigarettes.

Chauvin took off a blue surgical face mask, mandated by the courts for COVID-19 protection, and spoke into a microphone in his hand. Jurors were not present for the discussion.

Nelson reminded Chauvin that "the state would have broad latitude" to cross-examine him as a witness if he testified. Nelson and Chauvin told the court they had "repeatedly" discussed whether to testify.

"We have gone back and forth on the matter would be kind of an understatement, right?" Nelson asked Chauvin.

"Yes, it is," Chauvin said with a small hint of a smile.

Nelson asked Chauvin if they had a "lengthy" meeting Wednesday night about testifying that led to "further discussion."

"Correct," Chauvin said, adding that he would not testify.

"The decision whether or not to testify is entirely yours," Cahill told Chauvin after his discussion with Nelson. "In other words, it's a personal right. … Is this your decision not to testify?"

"It is, your honor," Chauvin said.

The judge asked if he had any questions. He said no. The judge asked if anyone had made promises or threats to influence his decision.

"No promises or threats, your honor," Chauvin said.

Cahill asked Chauvin if he wanted jurors to receive a special instruction on the issue, which is offered by the courts when defendants choose not to testify. Chauvin said yes.

"The state must convince you by evidence beyond a reasonable doubt that the defendant is guilty of the crime charged," according to the instruction Cahill recited Thursday. "The defendant has no obligation to prove innocence. The defendant has the right not to testify. This right is guaranteed by the federal and state constitutions. You should not draw any inference from the fact the defendant has not testified in this case."

The defense officially rested its case several minutes later with jurors in attendance. Nelson called seven witnesses between Tuesday and Wednesday.

Arthur Reed, one of Floyd's cousins, watched the proceeding from the lone seat in the courtroom designated for a Floyd family representative. COVID-19 safety protocols have severely limited the number of attendees. A woman sat in a seat Thursday reserved for Chauvin's supporters. She declined to identify herself to a reporter.

Asked outside the courtroom about Chauvin's decision not to testify, Reed said he believed the prosecution "would have chopped him down second by second" were he asked why he remained on Floyd for more than nine minutes.

"We didn't think they were going to put him on at all," Reed said. "We're just ready to get this over with, make sure [Floyd] gets the justice he deserves. We think the state has put on an excellent case."

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Colorado death penalty trial moves forward in spite of pandemic

This is the third in a series of blogs today regarding the interplay between the pandemic and the death penalty.  Earlier I wrote about the state of Texas canceling an execution due to the pandemic; a Pennsylvania death row inmate who wants released because he has COVID-19 symptoms; and now the death penalty trial proceeding in Colorado despite a State Supreme Court order suspending normal state court operations as a precaution against the pandemic, as reported by the Colorado Independent. 

Dreion Dearing, 24, is accused of killing Adams County Deputy Heath Gumm in January 2018. 

The showdown playing out between Dearing’s public defenders and Adams County’s 17th Judicial District judges pits the constitutional right to a speedy trial against the constitutional rights to a public and fair trial. All this at a time when the state legislature just passed a bill to repeal the death penalty, which Gov. Jared Polis is expected soon to sign into law.

“From what I’ve read and seen, the 17th Judicial District and state judicial (branch) have failed in their obligation to ensure a safe environment for jurors and all involved individuals in order to rush to kill Mr. Dearing, another man of color facing the death penalty in Colorado,” said Faisal Salahuddin, a civil rights and criminal defense lawyer in Denver who is not involved in the case.

Dreion Dearing and his family members (picture included in a court motion)

“What’s the purpose of all the metal detectors, cameras and security you have to go through in courthouses if they’re willing to put jurors at risk like this? I mean, is it all just a show?” he added. “This is unreal.”

District Attorney Dave Young, who is prosecuting Dearing, has said through his spokeswoman that his office has no response to the defense’s concerns.

Colorado Supreme Court Chief Justice Nathan Coats issued an order Monday shutting down most state courts through at least April 3. 

He has left the door open for chief state district judges to allow some proceedings, including those for bail, protection orders, probation revocation, child protection and parenting time, emergency health proceedings, and “proceedings necessary to protect the constitutional rights of criminal defendants.”

Dearing’s case falls into the last category because his right to a speedy trial expires on March 23, a six-month time frame based on when he entered his plea.

But his lawyers and District Judge Mark Warner have disagreed about whether the trial already has started. 

Beginning March 9, the judge had potential jurors report to the courthouse in groups of 250 each morning and afternoon to fill out questionnaires in the case. In what experts say is an unusual move, Warner refused to let Dearing and his lawyers sit in on videotaped instructions to prospective jurors and observe their reactions. The judge then set what he called a “hearing” Tuesday, also prohibiting Dearing and his lawyers from attending. (The judge also has barred this reporter from all future proceedings for taking pictures in his nearly empty courtroom during a recess in violation of court policy. The pictures included one of dirt from a courtroom bench on a disinfectant wipe.)

Adams County Deputy Heath Dumm (picture included in a court motion)

Tuesday morning, 17th Judicial District Chief Judge Emily Anderson issued an order saying that because of the coronavirus outbreak, the courthouse in Adams County will be closed to the public, operating with reduced staff and “a focus on matters of immediate concern for public safety.” Anderson — who has not responded to a Colorado Independent inquiry today — ordered that Dearing’s proceeding, set for 1:30 this afternoon, go forward despite health concerns. 

Dearing’s lawyers filed a response this morning objecting to the court holding any part of the proceedings in a closed courtroom, saying it violated his rights to a public trial. They argue that his trial started on March 9, when jurors were first summoned to the courthouse about the case, and met the speedy trial requirement. Today’s proceeding would not be a hearing, they say, but rather part of Dearing’s trial.

Judge Warner, in response, issued an order at 10 a.m. postponing the proceeding until tomorrow, Wednesday. 

Jurors are scheduled to appear this Friday, March 20, for voir dire, the process in which prosecutors and defense lawyers personally question them for jury selection. They are expected to be asked about their views of the death penalty, their willingness to avoid publicity about the case, and factors that would make jury duty a hardship. 

A “hardship,” defense experts tell The Independent, would include health concerns about having to sit through what likely will be a months-long trial during a time of pandemic, social distancing, and, potentially, quarantine. 

Judge Warner said at a hearing on Friday that his staff has taken precautions by measuring off seats six feet apart from each other so potential jurors may undergo questioning at a safe distance from each other. Six jurors will be called in each morning, then six in the afternoon each day until lawyers agree on a pool of 125. From there, lawyers will whittle down that pool to a panel expected to consist of 12 jurors and six alternates. 

One of Dearing’s defense lawyers, Joe Archambault, chief deputy state public defender, asked Warner on Friday to ensure that all potential jurors be tested and deemed COVID-19 free before reporting back for jury duty. The judge — who has promised his staff would use paper towels and disinfectant in jury spaces — denied that request. 

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