Cop Charged in Floyd Killing Asks for Trial Delay

Former Minneapolis police officer Tou Thao enters the Hennepin County Courthouse in Minneapolis with his attorneys before a motions hearing on July 21, 2020. (Evan Frost/Minnesota Public Radio via AP)

MINNEAPOLIS (CN) — One of the four officers involved in the fatal arrest of George Floyd is seeking sanctions and a postponed trial, claiming prosecutors withheld a medical examiner’s interview for over two months.

Attorney Robert Paule, representing now-fired Minneapolis police officer Tou Thao, filed a motion Friday morning seeking attorney’s fees and a four-month continuance of his client’s trial.

At issue is an FBI summary of a July 8 interview with Hennepin County Medical Examiner Dr. Andrew Baker, in which Baker opined that Floyd’s autopsy showed no evidence of mechanical asphyxia. The interview, Paule wrote, was available to Hennepin County Attorney Mike Freeman’s office at least as early as Aug. 7 but was not presented in discovery until Oct. 28. Judge Peter Cahill had set a discovery disclosure deadline of Aug. 14.

“Not only did this disclosure violate the court’s order, but it appears to have been done in a manner designed to handicap the defendant’s motion to dismiss for lack of probable cause,” the motion states. “If Mr. Thao had Dr. Baker’s opinion prior to the [Sept. 11] omnibus hearing he would have been able to make a more persuasive argument for dismissal.”

Baker, according to the FBI summary, did not fully absolve co-defendant Derek Chauvin of playing a role in Floyd’s death. He could not provide an answer as to whether Floyd would have lived if Chauvin had not knelt on his neck for upwards of nine minutes, but cited it as a complicating factor in his death by cardiopulmonary arrest. Other factors, he said, included hypertension, the presence of fentanyl and methamphetamine and heart disease. While Floyd tested positive for Covid-19, Baker said he found no physical evidence of the disease.

Paule said that the report was not the only piece of evidence the state held on to for too long.

“To date, the state has untimely disclosed evidence eight times amounting to over 15,000 pages of evidence,” he wrote, saying some of the other evidence was also favorable to the officers.  

Freeman’s office has been a frequent target for defense counsel’s ire in the case against Thao and fellow former officers Chauvin, Thomas Lane and J. Alexander Kueng. Cahill briefly removed Freeman and three other attorneys in his office from the case for meeting with Baker with no non-attorney witnesses. He partially vacated that bench ruling two months later, allowing Freeman and the other attorneys to participate in the prosecution but not to appear or sign motions or pleadings.

Assistant Attorney General Matthew Frank has been the lead prosecutor in the case since Attorney General Keith Ellison took it over from Freeman in early June. Ellison’s office took the case on after Floyd’s death sparked a week of protests, civil unrest and arson in Minneapolis. He brought a second-degree murder charge against Chauvin and corresponding aiding-and-abetting charges against the other three officers, adding to Chauvin’s existing third-degree charge brought by Freeman. Many protesters had derided that count as too weak.

Paule wrote that the fact that the county attorney had the information did not absolve the attorney general’s office, pointing to an Aug. 7 letter sent from Freeman’s office to an assistant U.S. attorney about the FBI summary.

“The Hennepin County Attorney’s Office and the Office of the Minnesota Attorney General have been jointly prosecuting this case from the outset. Together, the exhibits clearly demonstrate that the state had knowledge of this interview and its importance, yet failed to timely and properly fully disclose the materials to Mr. Thao,” Friday’s motion states.  

Cahill granted a motion for joinder early in November, and all four officers are now scheduled for trial beginning on March 8. Paule’s motion asks for a continuance to July 5, a four-month delay “representing the four months the state has disregarded this court’s discovery deadline.” He also seeks additional time for defense disclosures of expert witnesses.

Ellison rejected Paule’s claims in a statement Friday.

“The defense motion is without merit,” the attorney general said. “The state disputes the defense’s inaccurate characterizations, and we look forward to providing the facts in our response to the court.”

Paule did not respond to a request for comment and the Hennepin County Attorney’s Office declined to comment.

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