Ex-Cops in George Floyd Case Challenge Gag Order

From left to right: Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thao. (Hennepin County Sheriff via AP)

MINNEAPOLIS (CN) — Attorneys for the four former Minneapolis police officers charged in George Floyd’s death objected to a gag order Monday, arguing that one attorney’s comments to the media about evidence he thought should be made public were harmless.

An attorney for Derek Chauvin filed an objection to the order, saying it was unfairly hurting his client by preventing favorable information from entering the public sphere.  Attorneys for Thomas Lane and Tou Thao, meanwhile, filed motions to lift the order on similar grounds. A lawyer for the fourth officer, J. Alexander Kueng, filed his own objection later Monday afternoon.

“If anything, the gag order should apply only to the state and county prosecutors, who have enjoyed a lengthy, unrestricted media honeymoon, during which to comment and posit and discuss this case at length — likely in violation of their ethical duties,” Chauvin’s attorney Eric Nelson wrote.

Hennepin County Judge Peter Cahill issued the gag order on Thursday. He found that comments to the Minneapolis Star Tribune by attorneys Earl Gray and Thomas Plunkett, who represent Lane and Kueng, respectively, risked tainting a potential jury pool.

Cahill warned at a June 29 hearing that he wouldn’t hesitate to issue a gag order or change venues if leaks and potentially prejudicial comments continued, instructing Assistant Attorney General Matthew Frank to ensure that state officials and Floyd’s family avoid publicly discussing the case.

Gray spoke to the Star Tribune after he and Plunkett filed motions to dismiss the cases against their clients on Wednesday. Those motions came with transcripts of Lane and Kueng’s body camera footage and of a Lane interview the Minnesota Bureau of Criminal Apprehension. Also filed, but not made public, was the actual body camera footage — an omission to which Gray objected.

“I think the public should see it,” he told the Star Tribune. “That shows the whole picture. If they watch the whole thing, people… couldn’t cherry-pick parts of it.”

The attorney argued that the footage should be public because Attorney General Keith Ellison, who is prosecuting the case, “has come out and said my client committed murder.”

Cahill issued the gag order the next day, asserting that “two or more attorneys” had discussed the merits or other aspects of the case with the media after Lane’s motion to dismiss was filed.  

Plunkett, who was quoted in the Star Tribune story, said in his objection that his only comments to the paper had been to say he was considering a similar motion.

“That is hardly expounding on merits or commenting on aspects of the case,” he wrote, adding that the gag order had been issued without notice or a hearing. 

Defense counsel for all four officers have pushed to keep court proceedings in the public eye since the beginning of the case. They called for audiovisual coverage inside the courtroom early in June, which Cahill also denied.

In his objection to the order, Chauvin’s attorney lamented media coverage and officials’ comments on the officer’s case after a video of the now-fired Minneapolis police officer kneeling on George Floyd’s neck for nearly nine minutes on May 25 sparked civil unrest in Minneapolis, around the country and then across the world.

“For more than a month, the press, popular figures, high ranking politicians, and the attorney leading this prosecution—as well as his city councilman son—have all rendered their verdicts in this case publicly and on the most public stages possible. And they have all deemed the defendant guilty,” Nelson wrote.

Among the notables impacting the case, he said, were Jeremiah Ellison, the aforementioned son who has been heavily involved in the Minneapolis City Council’s recent push to “reimagine public safety”; Democratic Minnesota Governor Tim Walz; and Jon Bon Jovi, who released a song about Floyd’s death last week.

Those and other comments, Nelson argued, tarnished his client’s public image ahead of time, and a gag order prevented him from presenting the other side to the same audience.

Plunkett declined to comment Monday, and Gray and Nelson did not respond to requests for comment. Robert Paule, who represents Thao, could not be reached.

Attorneys for the officers were not the only ones calling for more open proceedings. A coalition of media outlets including the Star Tribune, Associated Press, American Public Media and a variety of TV networks filed a motion Monday seeking easier public access to the body camera footage. The footage has been accessible only in person at the Hennepin County Government Center through a court media contact, which the outlets argue is not enough for effective coverage. 

“A written transcript can capture only what someone said. A transcript does not begin to capture what someone did—and it is, after all, Lane’s alleged lack of criminal conduct that is the basis for his motion to dismiss,” attorney Leita Walker of Minneapolis-based firm Ballard Spahr wrote. 

“There is no reason to believe that making the BWC footage itself easily accessible to the press and public would materially impact the fairness of trial,” she added. “Indeed, releasing the transcripts without the accompanying footage is the sort of piecemeal disclosure that threatens not only to mislead the public, including potential jurors, but also to destroy the public’s trust in the judicial system.”

Attorney General Ellison, meanwhile, announced the addition of four new attorneys to the case on a pro-bono basis on Monday, including former acting Solicitor General Neal Katyal, former U.S. Attorney’s Office prosecutors Lola Velazquez-Aguilu and Seteven Schleicher and Jerry Blackwell of Minneapolis firm Blackwell Burke. All four were named special assistant attorneys general.

“Out of respect for Judge Cahill’s gag order, I will say simply that I’ve put together an exceptional team with experience and expertise across many disciplines. We are united in our responsibility to pursue justice in this case,” Ellison said in a statement.

If the cases against them are not dismissed, all four officers’ trials are scheduled for next spring. Chauvin faces charges of second-degree murder, third-degree murder and second-degree manslaughter. Thao, Lane and Kueng have all been charged with aiding and abetting second-degree murder and second-degree manslaughter.

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