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Judge denies request to change 'trauma' wording in Chauvin memo

"He had an opportunity to read what Ellison said with an open mind and do the right thing and modify his order," a former public defender said. "But instead, you see defensiveness."

The Minnesota judge who handled Derek Chauvin's murder trial in George Floyd's death has denied the state attorney general's request to modify his sentencing order to delete suggestions that child witnesses did not suffer trauma and accused the prosecutor of "injecting supposed racial presumptions" in the case.

Hennepin County District Judge Peter Cahill said in an order Tuesday that Minnesota Attorney General Keith Ellison "mischaracterizes" his sentencing memo and "misperceives" what the court's focus should be: Chauvin's conduct toward Floyd on May 25, 2020. Ellis' office prosecuted the case and requested the modification in a letter to the court last week.

"What the court wrote is that 'the evidence at trial did not present any objective indicia of trauma,'" Cahill wrote. "It is certainly possible that the witnesses experienced some level of emotional trauma from this incident, but the State failed to prove it."

Minnesota Judge Peter Cahill addresses the sentencing hearing for former Minneapolis police officer Derek Chauvin for the murder of George Floyd in Minneapolis on June 25, 2021.Court TV

Cahill said that he neither found nor wrote that the four child witnesses were not traumatized.

Ellison's spokesman said his office was reviewing the judge's order and did not yet have a comment.

Chauvin, a former Minneapolis police officer who knelt on Floyd's neck for 9½ minutes while Floyd said he couldn't breathe and went limp, was convicted in April of unintentional second-degree murder, third-degree murder and second-degree manslaughter. He was sentenced last month to 22 and a half years in prison.

In the sentencing memo, Cahill said the presence of children on the scene did not factor into Chauvin's punishment because the affect on them was not "so substantial and compelling" as to warrant it, a determination that drew criticism from some legal and trauma experts, as well as Ellison. Cahill also wrote that Darnella Frazier, who was 17 when she recorded a cellphone video of Floyd's arrest that brought international attention to his death; her 9-year-old cousin Judeah Reynolds; and Alyssa Funari, another 17-year-old girl who also recorded several minutes of Floyd being restrained, "are observed smiling and occasionally even laughing over the course of several minutes."

In his filing last week, Ellison said that he was not seeking any change to Chauvin's sentence. He asked that Cahill remove suggestions that four girls who witnessed Floyd's death and testified at Chauvin's trial weren't traumatized by what they saw. Frazier testified that she sometimes lies awake at night "apologizing and apologizing to George Floyd for not doing more and not physically interacting and not saving his life." Funari testified that she had not returned to the scene since Floyd was killed.

"Discounting the trauma of the children who testified at trial — in an authoritative judicial opinion, no less — will only exacerbate the trauma they have suffered," Ellison wrote. "The Court should correct the public record to avoid that result."

Modifying the sentencing memo "will avoid the risk of sending the message that the pain these young women have endured is not real or does not matter, or worse, that it is a product of their own decisions and not a consequence of Defendant's," Ellison wrote.

In his response Tuesday, Cahill said that at the sentencing hearing, he stated that Chauvin's punishment was not intended "to send a message" of any kind. "Instead of sending a message, the Court was pointing to the facts of the case, specifically that the minors for whom the State expresses such concern were, in fact, free to leave the scene and were never coerced or forced by Chauvin or any of his colleagues to remain at the scene and watch Floyd's restraint."

Ellison cited research showing that children process trauma differently from adults and that adults tend to discount the impact of trauma on Black girls, including through adultification, a perception that they are less innocent and more like adults than their white peers.

Cahill accused the state of "injecting supposed racial presumptions" in the case. Cahill said that he never mentioned the races or ethnic statuses of the observers at the scene or of the child witnesses, three of whom were 17 at the time and are now 18. Two of the girls are white and the two others, Frazier and her 9-year-old cousin, are Black, Cahill wrote.

"Whether 'adultification' of 'Black girls' is, as the State insists, 'common in American society, including in the criminal justice system,'" Cahill wrote, "this court emphatically rejects the implication that it played any part in the Court's sentencing decision."

Cahill noted in the 22-page sentencing memo that while he had previously found four aggravating factors in Floyd's death, only two allowed him to sentence Chauvin to 10 years above the presumptive penalty of 12½ years under state sentencing guidelines. Two factors that justified a higher sentence, or what is known as an upward departure of sentencing guidelines, he wrote, were Chauvin's abuse of his position of trust or authority as an officer and his treating Floyd with particular cruelty.

Cahill concluded his order by saying: "This Court did not find that the presence of three young women and one young girl who observed the officers' restraint of George Floyd for several minutes before he was loaded onto a stretcher and placed into an ambulance by itself presented substantial and compelling reasons for an upward durational departure, for the reasons the Court explained in its Sentencing Memorandum Opinion."

Mary Moriarty, a former chief public defender in Hennepin County, said Cahill's response is disappointing but not surprising.

"He had an opportunity to read what Ellison said with an open mind and do the right thing and modify his order," she said. "But instead, you see defensiveness and a claim that it's actually the state that's introducing race to this when Cahill was the one who is in error about trauma and adultification of children."

Moriarty said she believes that Cahill could have "stepped up" and shown people in positions of authority in the criminal justice system, such as judges and prosecutors, that people make mistakes but when you make a mistake, you can correct it without getting defensive.

By referring to the three 18-year-olds as "young women" in the sentencing memo and in his order Tuesday, Cahill gave the false impression they are older than they are, Moriarty said.

"This is the biggest trial Minnesota has ever had," Moriarty said. "He could have modeled someone who is very authoritative in a case that's watched across the world."