The lead prosecutor in the case against Derek Chauvin, the former Minneapolis police officer sentenced to 22 and a half years in prison for murdering George Floyd, has asked the judge to modify his sentencing memo "to prevent potentially causing further harm by discounting the trauma suffered by" the four girls who witnessed Floyd's murder.
In a letter dated Wednesday and made public Thursday, Minnesota Attorney General Keith Ellison wrote that "the State respectfully requests that the Court remove the suggestion that, because the children in this case were not forcibly held at the scene or otherwise prevented from leaving, an aggravating factor should not apply."
"The State is deeply worried about the message sent by suggesting that instead of attempting to intervene in order to stop a crime — which children did in this case — children should simply walk away and ignore their moral compasses," Ellison wrote. "Children should never be put in this position."
He asked that two phrases referring to the children be removed from page 16 of the sentencing memo: "were free to leave the scene whenever they wished," and "were never coerced or forced by him or any of the other officers to remain a captive presence at the scene."
At the request of prosecutors, Hennepin County District Judge Peter Cahill considered four aggravating factors in determining Chauvin's sentence. Cahill decided that only two of them merited consideration in his sentencing guidelines: that Chauvin abused his position of trust and authority as a police officer when he restrained Floyd, and that he treated Floyd with particular cruelty. But he did not agree that the presence of children on the scene and that the participation of other officers were grounds for a longer sentence.
In the sentencing memo, Cahill said the presence of children on the scene, including a 9-year-old girl and her 17-year-old cousin whose cellphone video of Floyd's arrest brought international attention to his death, 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.
Cahill wrote that he observed three children, including Darnella Frazier, who recorded the widely seen video of Floyd, her 9-year-old cousin and Alyssa Funari, who was also 17 at the time, "smiling and occasionally even laughing" in a video from the body camera of one of the officers at the scene.
"Although the state contends that all four of these young women were traumatized by witnessing this incident, the evidence at trial did not present an objective indicia of trauma," Cahill wrote in the sentencing memo.
Ellison objected to the judge's opinions in his letter Wednesday, writing that "the Court should specifically remove its reference to the children's demeanor" because "children process trauma in sometimes counterintuitive ways, their physical demeanor is not a useful indicator of whether those children have experienced trauma."
He cited a report from the American Psychological Association. Additionally, Ellison wrote, "a growing body of research suggests that observers discount the experiences of young Black girls."
At least two of the children who witnessed Floyd's death are Black.
Ellison quoted a report from the Center on Poverty and Equality at Georgetown Law that states that as early as age 5, "Black girls were more likely to be viewed as behaving and seeming older than their stated age . . . and more likely to take on adult roles and responsibilities than what would have been expected for their age."
This phenomenon, Ellison noted, is known as adultification. Research confirms that "when Black girls do behave maturely, adults may be more likely to mistakenly view such behavior as evidence that the girls do not need protection or nurturing," Ellison wrote.
Ellison said that because the law does not require proof of trauma to prove the factual existence of this aggravating factor, "the lack of focus on this issue is understandable."
"The Court's conclusion that the children did not suffer trauma is therefore difficult to reconcile given the limited evidence and the lack of a specific inquiry," he wrote. "The State asks the Court to modify its findings to eliminate this unnecessary and potentially damaging determination."
The court should also delete references suggesting that witnessing a brutal murder did not traumatize the children, Ellison wrote.
He said two particular pieces of evidence that deserve mention are Frazier's testimony at trial during which she broke down in tears and said that she had stayed up many nights apologizing for not doing more to save Floyd. "Frankly, it is hard to imagine a more compelling and genuine indicium of trauma" than her testimony, Ellison wrote. The second piece of evidence is Funari's testimony that she has been unable to return to Cup Foods, the store where Floyd was alleged to have used a fake $20 bill before he was arrested and killed May 25, 2020.
Ellison attached a declaration from Dr. Sarah Vinson, a physician in Georgia who specializes in adult, child and adolescent, and forensic psychiatry, who said in a separate letter to the judge that she was a consultant in the case and had viewed the testimony of the four girls.
"Given the nature of the underlying crime in this case, a murder by an authority figure, it would be expected and should be presumed that the children who bore witness to this experienced trauma," Vinson wrote. "Although there was no specific inquiry into the psychological impact these children experienced, the limited information we have — primarily the trial testimony of the children about their thoughts and feelings — indicates that the witnesses experienced trauma."
As for the children's laughter, Vinson wrote that considering it was not sustained, "that the children were witnessing a murder at the time; that their behavior and testimony on the stand reflected negative emotional internal states associated with the incident; and that they were developmentally immature given their young ages — the most reasonable explanation is that the laughter was a stress response."
Vinson said that witnessing a murder, in any context, would give rise to trauma and that discounting the children's accounts of their experiences has the potential to exacerbate the harm to their psyches. She also said that for racial minorities, "an identification with a Black murder victim — even in cases where the victim is not someone known personally — can serve as a distressing reminder of the threat to them and their loved ones."
Ellison concluded his letter by saying that any modification would not, in any way, affect Chauvin's sentence but would "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."
A court spokesman said any response from Cahill "will come via the official court record." Ellison's spokesman declined to comment further.