MINNEAPOLIS (CN) — A frigid weekend in Minneapolis brought a flurry of developments in the lead-up to the trial of fired Minneapolis police officer Derek Chauvin, including the second appeal in two weeks by prosecutors and a motion to dismiss the case against one of Chauvin’s former colleagues over a press leak.
Attorney Robert Paule, who is defending former Minneapolis police officer Tou Thao against aiding-and-abetting charges stemming from his involvement in the fatal arrest of George Floyd last year, filed a motion Monday afternoon seeking dismissal of the case against his client and sanctions against prosecutors.
Paule expressed outrage over a series of New York Times articles beginning last week which revealed that Chauvin was preparing to plead guilty to third-degree murder in Floyd’s death before then-U.S. Attorney General William Barr rejected a plea deal in late May 2020.
That information, he wrote, “will irreversibly taint the jury pool and deny Mr. Thao his constitutional right to a fair trial by impartial jurors.”
“There are a finite number of people that would have had direct knowledge of the alleged plea agreement,” the motion states. “The newspaper articles show that Mr. Chauvin’s team was not the source, nor were the federal prosecutors. Using deductive reasoning, the leak had to have come from the state.”
Minnesota Attorney General Keith Ellison, whose office is leading the prosecution, dismissed the motion out of hand.
“This is one convoluted conspiracy theory,” he said in a statement. “It fantasizes that even before we took over the case we somehow knew what then-President Trump’s then-attorney general was thinking. It's completely false and an outlandish attempt to disparage the prosecution for seeking justice in the death of George Floyd. Had we been contacted prior to its filing, we could have debunked this bizarre theory from the outset and avoided this waste of the court’s time.”
That Chauvin had entertained a plea deal was not news. Hennepin County Attorney Mike Freeman confirmed to media as early as June 10, 2020, that negotiations with Chauvin had been underway but fell apart. The leak to the New York Times, however, revealed that Chauvin had been prepared to plead to third-degree murder and face more than a 10-year prison sentence in exchange for assurances that he would not face federal civil rights charges.
Paule’s motion came on the heels of prosecutors’ Friday night appeal of Hennepin County Judge Peter Cahill’s decision not to reinstate the third-degree charge against Chauvin.
Assistant Attorney General Matthew Frank argued in a recent motion that those charges should be put back on the table in light of a recent Minnesota Court of Appeals decision in the case of Mohamed Noor, another Minneapolis police officer who was convicted of third-degree murder for the 2017 death of Justine Ruscyk Damond.
The appeals court upheld Noor’s conviction, rejecting the same doctrine – that a perpetrator’s conduct must endanger more than one person to justify a third-degree murder charge – that Cahill cited in dismissing similar charges against Chauvin, Thao and fellow officers J. Alexander Kueng and Thomas Lane.
Cahill rejected that motion, pointing out that the Court of Appeals decision was itself likely to be appealed and could be reversed. Prosecutors appealed that decision on Friday.
"In light of the Minnesota Court of Appeals’ recent opinion upholding the Noor conviction for third-degree murder, we are seeking to reinstate the third-degree murder charge against defendant Derek Chauvin and add a third-degree murder charge against the other three defendants in the Floyd case,” Ellison said in another statement.
He added, “We believe that the district court’s decision to deny our motion on this matter did not adhere to the Court of Appeals’ recent ruling, and we are seeking its review. We are continuing to pursue justice in the case and look forward to presenting the facts to a jury."
In an interview Tuesday, Mitchell Hamline School of Law professor Ted Sampsell-Jones said, “This case keeps getting weirder. And, arguably, stupider.”
“It's technically true that the Court of Appeals decision is not yet final, as Noor will be seeking Supreme Court review. Regardless, for a trial judge to refuse to enforce an appellate court ruling because he disagrees with it is not normal,” he said.
Sampsell-Jones noted the latest appeal was more likely to meet the appellate court’s “critical impact” standard to determine whether it can hear an appeal before trial.
“It's also not surprising that the prosecution chose to appeal. I doubt the third-degree charge will matter much in the end, but it's become clear that the prosecution is absolutely desperate to delay Chauvin's trial. This gives them a way to do so,” he said.
Prosecutors have consistently denied that speculation, saying they are prepared to go to trial on schedule starting March 8. Their prior appeal stemmed from an effort to push the trial back to allow for more Covid-19 vaccinations, which led Cahill to sever Chauvin’s trial from that of his colleagues in order to address virus concerns. Prosecutors appealed that order, objecting to the severance of the trials.
Sampsell-Jones also cast doubt on the viability of Thao’s motion, calling it “mostly grandstanding.”
“That was a strange leak, and we've all been gossiping about who the source of the leak was. The problem is, there is no way that the defense will ever be able to prove that it was someone from the prosecution team,” he said, pointing out that the leak could just as easily have come from the Department of Justice. “And the leaker would never admit being the leaker. So that motion will go nowhere.”
Paule did not respond to a request for comment.
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