MINNEAPOLIS (CN) — Prosecutors in the criminal trial of four former Minneapolis police officers for the death of George Floyd have asked the Minnesota Court of Appeals to ensure the group is tried together.
Assistant Attorney General Matthew Frank filed a notice of appeal late Thursday afternoon. Frank has led the murder and aiding-and-abetting prosecution of fired officers Derek Chauvin, Tou Thao, J. Alexander Kueng and Thomas Lane.
He argued that a recent sua sponte order by Hennepin County Judge Peter Cahill to separate Chauvin’s trial from that of the other three defendants was an abuse of discretion due to the risks posed by the Covid-19 pandemic.
Cahill issued that order on Jan. 11 in response to a motion by the state to push the trial of all four officers to June. Prosecutors argued that the release of Covid-19 vaccines would make a later trial safer, particularly in light of the possibility of protests and other mass gatherings.
Chauvin’s attorney, Eric Nelson of Halberg Criminal Defense, also argued for a continuance on different grounds. He alleged discovery misconduct by the state and cited that as cause to move his client’s trial back. Cahill largely rejected that argument, finding no deliberate misconduct.
He lent more credence to Covid-19 concerns but was reluctant to change the trial date.
“For most criminal trials involving 14 jurors and multiple defendants, the courtrooms are adequate,” Cahill wrote.
Despite this, he added, defense attorneys’ recent announcement that they intended to have co-counsel or legal support at their counsel tables make the largest available courtroom insufficient for a four-defendant trial.
He severed Thao, Lane and Kueng’s trial from Chauvin’s and moved it to Aug. 23. Chauvin’s trial for second-degree murder is still scheduled to begin March 8.
Cahill also denied a motion to reconsider the severance in an order issued on Jan. 21.
Frank argued that these decisions were not consistent with civil-procedure rules.
“The District Court’s decision to proceed to trial on March 8 and to proceed with two separate trials creates a serious public health risk,” Frank wrote in appeal documents. “Regardless of how this Court elects to exercise jurisdiction, relief is warranted here because the District Court’s decision violates the law and threatens serious harms to public health.”
That rule includes three potential causes for severance of co-defendants, including out-of-court statements that are admissible in the case against one or more defendants but not the defendant who made the statement, a determination by the court that severance is needed to fairly determine a defendant’s guilt or innocence, or cases in which two or more defendants are represented by the same attorney.
The statement also argued that the Court of Appeals had authority to hear the appeal “even absent a showing of ‘critical impact,’” but said that if it opted not to, it had jurisdiction to instead issue a writ of prohibition.
Attorney General’s Office spokesman John Stiles said that a brief will be filed Friday with more thorough discussion of the state’s arguments.
“We’ll let that speak for itself,” he said.
Prosecutors have maintained that they are prepared to go to trial as scheduled.
Thomas Plunkett, who represents former officer J. Alexander Kueng, declined to comment on the appeal. Attorneys for the three other defendants did not respond to requests for comment Thursday evening.
The Minnesota Court of Appeals has yet to announce any planned hearings in the case.