Trial for Three Ex-Cops Charged in Floyd Case Pushed to 2022

The decision to delay the trial for Derek Chauvin’s alleged accomplices was unopposed, but came at the end of a contentious hearing on other issues.

From left: Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thao. (Hennepin County Sheriff’s Office via AP, File)

MINNEAPOLIS (CN) — The state-court trial of three former Minneapolis police officers accused of aiding and abetting the murder of George Floyd has been delayed until next year pending the resolution of federal civil rights charges. 

Hennepin County Judge Peter Cahill made the decision at the end of a contentious Thursday morning hearing in the cases of former officers Tou Thao, Thomas Lane and J. Alexander Kueng. He pushed the officers’ August 2021 trial date back to March 7, 2022, citing the logistical problems of conducting two trials so close to each other along with the probability of heavy pretrial publicity. 

Lane, Kueng and Thao’s fellow officer Derek Chauvin was convicted of second- and third-degree murder and second-degree manslaughter late in April for Floyd’s death, and federal prosecutors announced federal civil rights charges against all four officers Friday morning.

Attorneys for all three of the other officers agreed on the motion to delay trial, and prosecutor Matthew Frank raised no objection at Thursday’s hearing.

“If nothing else, we need some distance from all the publicity that has occurred and is going to occur this summer,” Cahill said of the move.

The delay also makes time for resolution of several other issues brought up at Thursday’s hearing — most notably an ongoing controversy over a New York Times story regarding a plea deal prosecutors worked on with Chauvin before it was scuttled by then-U.S. Attorney General William Barr. 

The story, based on a leak from unnamed law enforcement officials, revealed that Chauvin and attorney Eric Nelson had reached a deal for Chauvin to plead guilty to third-degree murder in exchange for assurance that he would not face federal charges. That deal reportedly fell through when Barr refused to sign off on it. 

After the story went public, Thao’s attorney Robert Paule moved to sanction prosecutors for the leak. Nelson did not join him, and in closed-door discussions, the hearing revealed, Cahill opted not to address the issue directly at the time in order to avoid further publicity before Chauvin’s trial. 

Cahill also suggested at that time that prosecutors submit affidavits denying involvement in order to “avoid a circus.” Frank did, and Minnesota Attorney General Keith Ellison submitted a letter addressing the issue.

Hennepin County Judge Peter Cahill discusses motions on April 15, 2021, in the trial of former Minneapolis police officer Derek Chauvin. (Court TV via AP, Pool)

Cahill said at Thursday’s hearing that he wouldn’t order such a thing, but that submitting those affidavits would help speed the process along. He reiterated that point several times in response to Frank’s arguments that while the issue was serious, an order would shift the burden of proof of misconduct from Paule to the state. He said the leak appeared to come from the Department of Justice in any case. 

“The articles are about Bill Barr’s role,” Frank said. “We’re no friends of Bill Barr.” 

Frank also argued that Paule’s motion for sanctions was a ploy to bolster the case for a change of venue and to spin a media narrative in the defendants’ favor.

“These are personal attacks, aimed at us personally, in an attempt to distract and mislead the public,” he said. None of the jury pool in Chauvin’s case, Frank said, was dismissed because they said they’d heard about the plea deal. 

Paule, meanwhile, said that Frank’s affidavit and Ellison’s letter weren’t enough proof that the leak didn’t come from Ellison’s office. “I will be very blunt with the court; this is the single worst incidence of misconduct I have seen in my career,” he said, adding that even if the FBI, Minnesota Bureau of Criminal Apprehension or Minneapolis Police Department was the source of the leak, the prosecution would still be responsible for it. 

Paule also pushed for the option to subpoena the story’s writer, The New York Times’ Los Angeles correspondent Tim Arango. He also joined Thomas Plunkett, representing Kueng, in requesting the removal of several prosecutors who were admitted to the case pro hac vice, notably former acting solicitor general Neal Katyal.

“Narrow the field of potential leakers,” Plunkett said, pointing to a local news article from Wednesday night forecasting the delay of trial. 

After that wrangling, Cahill put the choice bluntly to attorney Joshua Larson of the Hennepin County Attorney’s Office. “Are you going to take us up on our offer, or are you going to let Mr. Paule subpoena everybody in your office?” the judge asked.  

Cahill said he agreed with Frank’s contention that the leak probably came from Barr’s Department of Justice, citing what he called the “inside-baseball” function of the department at the time. As to the subpoena for Arango, he said, “that’s probably not going to happen.” 

“I’m a little skittish about putting a reporter on the stand,” Cahill said, “and asking him to reveal his source and face jail if he doesn’t.” 

Cahill didn’t completely rule out a subpoena, but said Arango would have to be accompanied by lawyers and wouldn’t be compelled to reveal his source. He also denied the motion to dismiss the attorneys without much discussion. 

That issue followed a contentious discovery question. Earl Gray, representing Lane, argued that Cahill should compel prosecutors to produce the Minneapolis Police Department’s use of force complaints for the last 30 years to demonstrate whether there were any incidents in which one officer physically intervened in another officer’s use of force. His objective, he said, was to impeach officers who might testify that a reasonable officer would be expected to intervene if he saw excessive force. 

The 30-year timestamp, Gray said, was directly in response to testimony from Lieutenant Richard Zimmerman, the department’s most senior officer, in which he said he’d stopped another officer from kicking a handcuffed arrestee in the 1980s or 1990s.

“I don’t believe it,” Gray said. “Let’s see the report that that actually happened. I suspect it didn’t.” 

Frank said that the request was burdensome and excessive, especially since Zimmerman didn’t even testify about that event at trial. He also warned that it could lead to the court litigating unknown numbers of other officers’ cases in the process of determining admissibility.

“If we start down that road, we’re going to have a trial of trials,” he said. “There will be no end to the collateral trials.” 

Cahill said he could see the value of that information to Gray’s case, but acknowledged the difficulty in compiling it and that Gray would be left trying to prove a negative. He also said it was unlikely that any such incidents would make it into police reports.

“I’ll bet you dollars to donuts that there’s nothing in the report about that, even if it did happen,” the judge said. 

Thirty years, Cahill said, was too broad, but he said he’d consider a scope of five or 10 years after Frank told him the police department enshrined a duty to intervene in its policy in 2016. He asked Frank to request information from the department about the volume of data they’d be looking at. 

Seen leaving the courthouse after the hearing, Frank and Larson said they wouldn’t be commenting.

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