Finding that Covid-19 risks are not enough to second-guess a trial judge, the appellate court rejected an effort by the state to join the cases of four officers charged in connection with George Floyd’s death.
ST. PAUL, Minn. (CN) — The Minnesota Court of Appeals has rejected an effort to rejoin and delay the trials of the four former Minneapolis police officers facing charges in the death of George Floyd, finding that prosecutors had not shown that a late-in-the-game separation of the trials would sufficiently jeopardize their efforts to convict the officers.
A three-judge panel led by Judge Tracy Smith issued the court’s order Friday, finding that public health risks created by Covid-19 do not meet the “critical impact” standard required to justify pretrial review in Minnesota. Those risks, Assistant Attorney General Matthew Frank argued in his petition to the court, could create sufficient hazards to jurors, attorneys and others in the courtroom to justify review.
Frank’s appeal sought to challenge a Jan. 11 order by Hennepin County Judge Peter Cahill severing Chauvin’s case from that of his former co-workers Tou Thao, Thomas Lane and J. Alexander Kueng. Cahill split the cases after attorneys on both sides sought a continuance of trial to curb the risk of Covid-19 spread. Frank and his team argued that the emergence of vaccines for the virus would make a delay beneficial, but Cahill found that while an increased number of attorneys for the defendants raised concerns about spread, it was not enough to delay Chauvin’s trial.
The appeals court also declined to exercise its inherent authority to hear the case or to issue a writ of prohibition, two options Frank proposed in the brief as an alternative to a finding of critical impact.
“The state has not cited, and we are not aware of, any Minnesota authority holding that the court of appeals has inherent authority to accept jurisdiction over an appeal when doing so would be contrary to the supreme court’s express rules governing prosecution pretrial appeals,” Smith wrote in the order.
She added, “Even if the court of appeals has such inherent authority, the state has not shown that the issues in these appeals warrant suspending the critical-impact requirement.”
Smith declined to recast the appeal as a writ of prohibition, and clarified that “we do not mean to imply that, but for the state’s failure to seek a writ, prohibition would be appropriate here.”
“We observe that a pretrial appeal would be available to the state if it made the requisite showing of critical impact,” she said. “The state’s inability to make this threshold showing does not, by itself, render the ordinary remedy of a direct appeal inadequate.”
Failing an appeal to the Minnesota Supreme Court – a possibility which Minnesota Attorney General Keith Ellison’s office has declined to comment on – the ruling likely cements Chauvin’s trial in place on the calendar. Jury selection in the case is set to begin March 8 and the trial itself is projected to start on March 29. Thao, Lane and Kueng are set for trial in August, though a not-guilty verdict in Chauvin’s case would likely change that.
Chauvin faces charges of second-degree murder and manslaughter for his role in the fatal arrest of Floyd on May 25, 2020, when he was filmed kneeling on Floyd’s neck for over eight minutes until well after Floyd stopped responding. The other three former officers face aiding-and-abetting charges for their involvement in the arrest.
Floyd’s death prompted protests and civil unrest in Minneapolis which spread across the nation and internationally. The possibility of more protests has loomed large over the case, aggravated by the threat of Covid-19 and other safety concerns from Cahill and attorneys representing the defendants.
All four defendants are out on bond. Chauvin and wife Kellie Chauvin are also facing charges of tax fraud in his home county east of the Twin Cities, but that case has been delayed until the conclusion of his murder trial.
Ellison addressed the ruling in a brief statement.
“We filed the appeal two weeks ago because the state must and will always act in the best interests of justice and the people of Minnesota,” he said. “Seeking a continuance to protect jurors, court personnel, attorneys, and defendants from the lethal Covid-19 virus was the right thing to do and we stand by it. As we have said all along, we will be ready to start the trial whenever the court deems proper.”
Kueng’s attorney Thomas Plunkett and Chauvin’s attorney,Eric Nelson declined to comment. Attorneys for the other two former officers did not reply to requests for comment.