Attorney general challenges judge's characterization of girls' reactions at George Floyd murder scene

A judge's assertion that there is no evidence that four girls were traumatized by witnessing George Floyd's murder last year is being challenged by the Minnesota Attorney General's Office, which prosecuted the case.

Attorney General Keith Ellison filed a letter with the court late Wednesday asking Hennepin County District Judge Peter Cahill to delete portions of a June 25 document he filed in the case outlining his thought process for sentencing former Minneapolis police officer Derek Chauvin to 22 ½ years in prison for Floyd's murder.

Jurors convicted Chauvin on April 20 of second-degree unintentional murder, third-degree murder and second-degree manslaughter for killing Floyd on May 25, 2020. Cahill sentenced him June 25.

Ellison criticized Cahill for apparently dismissing the trauma suffered by the girls; three were 17 and one was 9 at the time.

"The Court should remove or modify the identified portions of the opinion," Ellison wrote in the letter made public Thursday morning. "Doing so will not, in any way, affect Defendant's 22.5 year sentence but will avoid the risk of sending the message that the pain these young women endured is not real or does not matter, or worse, that it's a product of their own decisions and not a consequence of Defendant's."

Cahill had written in his sentencing memorandum that three of the girls smiled and laughed during the encounter. The three included Judeah Reynolds, who was 9 at the time, and her cousin, Darnella Frazier, who was 17 and whose cellphone recording of the incident sparked the criminal case. The cousins had walked to Cup Foods to buy candy when they came upon 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 any objective incident of trauma," Cahill wrote.

Ellison wrote that the girls were traumatized even if their behavior did not appear to indicate trauma and that research shows a bias that casts Black girls in a more adult light. Frazier and Reynolds are Black, as was Floyd.

The girls and many other bystanders watched as Chauvin knelt on Floyd's neck for 9 ½ minutes while he begged for his life.

Ellison included a letter of support from Dr. Sarah Vinson, a child, adolescent and adult psychiatrist from Atlanta.

"As a Black girl, [Frazier] is at risk of having her actions interpreted through a lens that denies her vulnerability and attributes more advanced motives to her actions," Vinson wrote. "With adultification bias, there is a risk of minimizing the emotional and developmental vulnerability of [Frazier] and [Reynolds]. … Furthermore, [Frazier's] ostensibly mature actions can be understood as an empathetically driven response to a tragic situation in which the youth should never have been placed."

After Chauvin's conviction, Ellison's office asked Cahill to review five proposed aggravating factors that would allow the judge to sentence Chauvin to a prison term of more than the approximately 10 ½ to 15 years recommended by state sentencing guidelines.

Cahill found in late April that there were four aggravating factors: Chauvin abused a position of trust and authority; he treated Floyd with "particular cruelty"; Chauvin committed the crime as a group with others, and children were present at the time.

However, Cahill wrote in his sentencing memo that after a second review, he found that the presence of children did not present a "substantial and compelling" reason to give Chauvin a longer sentence. Only one aggravating factor is required for a judge to hand down a more-severe penalty.

"None was a victim in the sense of being physically injured or threatened with injury so long as they remained on the sidewalk and did not physically engage or interfere with Mr. Chauvin and his co-defendant officers," Cahill wrote about the girls. "Mr. Chauvin is correct that these young women were free to leave the scene whenever they wished, were never coerced or forced by him or any of the other officers to remain a captive presence at the scene."

Chauvin's attorney, Eric Nelson, had previously filed a memo challenging the proposed aggravating factors and argued that the presence of children typically pertains to children who are trapped in a domestic dispute.

The judge wrote that "contrary" to the state's assertions that they were traumatized, Frazier and another 17-year-old girl who also recorded the events, Alyssa Funari, "are observed smiling and occasionally even laughing over the course of several minutes." He also noted that Frazier and Reynolds were "observed smiling for several seconds" and later were "laughing" as a male witness verbally confronted the officers. Cahill also wrote that the two cousins were "observed laughing out loud" after Floyd was lifted into an ambulance.

Vinson wrote that children and teenagers often have limited or underdeveloped coping skills, and that responses to trauma can include laughing or smiling.

"One also cannot draw any inference about the trauma the minor witnesses experienced from the fact that they may have briefly laughed during the incident," she wrote. "The denial of trauma — especially by an authority figure — can be traumatic in and of itself. Therefore, discounting the children's own accounts of their experiences has the potential to exacerbate the harm to the minors' psyches in this case."

Frazier, Reynolds, Funari, and Kaylynn Gilbert, the third 17-year-old, testified at Chauvin's trial. Several broke into tears on the witness stand; at least one said she feared for her safety when Chauvin reached for his mace. Frazier testified that she suffered sleepless nights apologizing to Floyd that she couldn't do more to help him.

Ellison asked Cahill to remove from his memo the phrases "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." He also asked Cahill to delete the footnote in which the judge described Frazier's, Reynolds' and Funari's behavior.

Ellison "vehemently" disagreed with Cahill's characterization of the children's demeanor at the scene. He wrote that evidence of the girls' trauma would likely not have been allowed at Chauvin's trial, and that had he anticipated the judge's evaluation he would have requested a separate hearing to discuss the issue.

"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 compass," Ellison wrote. "Children should never be put in this position."

Chao Xiong • 612-270-4708

Twitter: @ChaoStrib