Lane’s Reply to Prosecution’s Opposition to Dismissal of Criminal Complaint 

On July 7, the attorney for defendant Thomas Lane filed a motion to dismiss the criminal complaint against him.[1] On August 10 the prosecution filed its papers opposing that motion.[2] On August 17, Lane’s attorney  submitted his reply to the State’s Response.[3]

As noted ,the first two sets of papers have been covered in prior posts. This post will review Mr. Lane’s reply papers.

Legal Standard for Aiding and Abetting Criminal Liability

Both sides necessarily are agreed that the standard for aiding and abetting criminal liability starts with the Minnesota statute on the subject—Minn. Stat. sec. 609.05 (Liability for Crimes of Another), which is derived from legislation adopted in 1963, 1986 and 1991. Its Subdivision 1 states as follows:

“A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.”

According to Mr. Lane’s attorney, the “seminal” Minnesota Supreme Court case on this provision is State v. Ulvinen, 313 N.W.2d 425 (1981)(en banc), which reversed a conviction of a mother for aiding and abetting her son’s first degree murder of his wife.

According to the Supreme Court, the son told the police that on the morning of the murder he told his mother, “I’m going to have to choke. . . [his wife] tonight and I’ll have to dispose of her body so that it will never be found.” In response his mother weeped and said, “it will be for the best.” Later that same day, the son told his mother, “Mom, tonight’s got to be the night.” She replied, as she had on other similar occasions, “Oh, you’re just kidding me.  I’m not certain, that it would be the best for the kids.”

The mother was asleep when the son committed the murder and she did not participate in his dismemberment of the body. Afterwards that same night she “came upstairs to intercept the children, should they awake, and prevent them from going into the bathroom. She cooperated with her son by cleaning some items from the bathroom and corroborating David’s story to prevent anyone from finding out about the murder.”

Said the en banc Supreme Court, “ these subsequent actions do not succeed in transforming her behavior prior to the crime to active instigation and encouragement. Minn.Stat. § 609.05, subd. 1 (1980) implies a high level of activity on the part of an aider and abettor in the form of conduct that encourages another to act. Use of terms such as ‘aids,’ ‘advises,’ and ‘conspires’ requires something more of a person than mere inaction to impose liability as a principal.” (Lane’s Reply at 13; emphasis added.)

 In addition, said the Court, the above statute “imposes liability for actions which affect the principal, encouraging him to take a course of action which he might not otherwise have taken. The state has not proved beyond a reasonable doubt that appellant was guilty of anything but passive approval. However morally reprehensible it may be to fail to warn someone of their impending death, our statutes do not make such an omission a criminal offense.” In so concluding, the Court said the mother “did not offer advice on how to kill his wife, nor offer to help him. She did not plan when to accomplish the act or tell her son what to do to avoid being caught. She was told by her son that he intended to kill his wife that night and responded in a way which, while not discouraging him, did not aid, advise, or counsel him to act as he did.”

Lane’s attorney also asserted that the above holding of Ulvinin was followed by at least the following subsequent Minnesota Supreme Court cases: (1) State v, Mahkuk, 367 N.W.2d 675, 683 (Minn. Sup. Ct. 2007)(reversal of conviction for aiding and abetting two murder counts because trial court’s jury instruction did not require the jury to find, beyond a reasonable doubt, that the defendant knew that a crime was going to be committed and intended his presence to encourage or further the crimes); (2) State v. Milton, 821 N.W.2d 789, 804 (Minn. Sup Ct. 2012) (affirmance of conviction of first-degree felony murder and attempted first degree felony murder; defendant failed to show that his substantial rights were affected by the trial court’s plain error in failing to instruct the jury that “intentionally aiding” was required for accomplice liability); (3) State v. Bahtuoh, 840 N.W.2d 804, 812-13 (Minn. Sup Ct. 2013) (affirmance of conviction for accomplice liability for first degree felony murder; the “intentionally aids” requirement has ‘two and necessary principles: . . .that the defendant knew that his alleged accomplices are going to commit a crime’ and . . . that the defendant ‘intended his presence or actions to further the commission of that crime;’”[4] State v. McCallister, 862 N.W.2d 49 (Minn. Sup. Ct. 2015)(affirmance of conviction for aiding and abetting first degree murder and first degree felony murder); (5) State v. Huber, 877 N.W.2d 519, 524 (Minn. Sup. Ct. 2016))(reversal and remand of conviction for intentionally aiding another in committing second degree murder and second degree felony murder on the ground that the instructions on accomplice liability were  plainly erroneous; such an instruction “must explain that to be criminally liable for the crimes of another, the State must prove that the defendant ‘knew his alleged accomplice was going to commit a crime and the defendant intended his presence or actions to further the commission of that crime.’”

Lane’s reply also cites a number of decisions of the U.S. Supreme Court and the U.S. Court of Appeals for the Eighth Circuit, which includes Minnesota., but since it is unlikely that any of them concern the Minnesota statute for accessory liability, it should not be necessary to analyze these cases.

Additional Factual Allegations about George Floyd

Lane’s reply contains nine-plus pages reciting additional “facts” about Mr. Floyd that his attorney recently has discovered. Since these “facts” were not known at the police’s May 25th fatal encounter with Mr. Floyd, it is difficult to see how they relate to the complaint for alleged aiding and abetting and if admissible at trial would go to the jury’s weighing all of the evidence.


The Prosecution’s papers opposing the dismissal motion, for this retired attorney without criminal law experience, seem weak on this key requirement for the aiding and abetting charges against  Lane.

This blogger invites anyone who has a more thorough analysis of the issues on Lane’s dismissal motion to add them in comments to this post.

Now we await the September 11 hearing on this motion and other matters in the four criminal cases over the killing of George Floyd.


[1] Ex-Officer Lane Moves for Dismissal of Criminal Charges for George Floyd Killing, July 9,  2020); Notice of Motion and Motion To Dismiss, State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court July 7, 2020); Memorandum Supporting Motion To Dismiss, State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court July 7, 2020).

[2]  State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause, State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court Aug. 10, 2020); Affidavit of Matthew Frank, State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court Aug. 10, 2020).

[3] Defendant’s Reply to the State’s Response to His Motion To Dismiss, State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court Aug. 17, 2020); Browning & Xiong, Lawyer for former officer charged as accomplice in killing of George Floyd says he ‘did nothing wrong,’ StarTribune (Aug. 18, 2020); Xiong, Audio of investigators questioning officer [Lane] in George Floyd killing released, StarTribune (Aug. 18, 2020); Read, Attorney for Minneapolis police officer says he’ll argue George Floyd died of an overdose and a heart condition, Los Angeles Times (Aug. 20, 2020).

[4] The Prosecution says that Bahtuoh suggests that Ulvinen’s requirement for a “high level of activity” by an alleged accomplice” is no longer the law. In the opinion of this blogger, however, this is a misreading of Bahtuoh, which merely states,”A jury may infer the requisite state of mind [of an accessory] from a variety of facts, including presence at the scene of the crime, a close association with the principal offender before and after the crime, a lack of objection or surprise under the circumstances, and flight from the scene of the crime with the principal offender.” (Prosecution’s Opposition at n.16, p. 25; emphasis added.)


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As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

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