Defendant Tou Thao has been charged with the crimes of aiding and abetting the murder and manslaughter of George Floyd, and on July 29, his attorney moved for dismissal of these charges.[1] On August 24, the prosecution responded to this motion.[2]
A prior post discussed Thao’s arguments for dismissal.[3] Now we look at the prosecution’s counter arguments.
Probable Cause That Thao Aided and Abetted Chauvin’s Committing Second-Degree Unintentional Murder[4]
“Minnesota law provides that a person is guilty of second-degree unintentional murder if he ‘causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting.’ Minn. Stat. § 609.19, subd. 2(1). “ (Prosecution Brief at 19.)
Here the other felony offense is third degree assault, which is “(i) an assault, defined as ‘the intentional infliction of or attempt to inflict bodily harm’ upon the victim; and (ii) the infliction of ‘substantial bodily harm’ upon the victim, defined as ‘bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member.’” (Id. at 19-20.)
There is probable cause that Chauvin committed this crime: George Floyd died, per the Hennepin County Medical Examiner, as a result of “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression.” “Chauvin’s actions—pressing his knee into Floyd’s neck for approximately nine minutes”—inflicted “substantial bodily harm” on Floyd, was done intentionally and was a ‘substantial causal factor’ in the death. (Id. at 21-22.)
For “aiding and abetting” criminal liability for this crime, the defendant must be one who ‘intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.’ (Minn. Stat. sec. 609.05 , subd. 1.” This requires the defendant to know that the other persons “were going to [commit] or were committing a crime” although such knowledge can arise “at the time of the acts or presence amounting to aid . . .[while the other persons are] in the process of committing the offense.” (Id. at 20-22.)
Here there is probable cause that Thao knew Chauvin was intentionally committing an assault on Floyd by hearing Floyd’s repeated “I can’t breathe” messages, Chauvin’s dismissive acknowledgements that he had heard those pleas, and the desperate similar comments from bystanders and later by Thao’s learning that Floyd had lost consciousness and by Thao’s understanding that Chauvin’s restraints were contrary to MPD policy. (Id. at 23-26.)
There also is probable cause that Thao aided Chauvin’s restraint of Floyd. Thao suggested that the other officers should continue to pin Floyd to the pavement when they rejected the idea of using a Hobble device to restrain Floyd. Thao prevented bystanders from intervening to assist Floyd, and the Minnesota Supreme Court in State v. Parker, 164 N.W.2d 633, 644 (Minn. Sup. Ct. 1969) recognized that the “lookout—” someone who stands watch nearby and helps to prevent others from interfering with the crime—is “classic example” of an aider and abettor. Thao also opposed the idea of using a Hobble device because it would be less convenient for all of the officers. (Prosecution Brief at 26-29.)
Probable Cause That Thao Aided and Abetted Chauvin’s Second-Degree Manslaughter[5]
A person guilty of second-degree manslaughter under Minnesota law is a “person who causes the death of another . . . by the person’s culpable negligence whereby the person creates an unreasonable risk and consciously takes chances of causing death or great bodily harm to another.” (Minn. State. 609.205(1).) (Id. at 33.) The previously cited grounds for Chauvin’s second-degree murder charge also establish his second-degree manslaughter charge. (Prosecution Brief at 32-36.)
Those same previously cited factual allegations also support that Thao meets the standards for aiding and abetting.
Conclusion
This blogger is perplexed that both the prosecution’s oppositions to the dismissal motions of Thao and Thomas Lane fail to mention that the MPD Policy and Procedure Manual in effect on May 25th has an express duty to intervene provision that states: “A. Sworn employees have an obligation to protect the public and other employees. B. It shall be the duty of every sworn employee present at any scene where physical force is being applied to either stop or attempt to stop another sworn employee when force is being inappropriately applied or is no longer required.”[6]
Now we wait to see whether Thao will submit a reply to the prosecution’s opposition to his dismissal motion and the September 11 court hearing on this and other matters.
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[1] Ex-Officer Thao Moves for Dismissal of Criminal Charges for George Floyd Killing, dwkcommentaries.com (July 30, 2020); Notice of Motion and Motion To Dismiss, State v. Thao, Court file No. 27-CR-20-1249 (Hennepin County District Court July 29, 2020); Memorandum in Support of Motion to Dismiss, State v. Thao, Court file No. 27-CR-20-1249 (Hennepin County District Court Aug. 5, 2020).
[2] Xiong, Former officer who held back crowd at George Floyd death should face trial, prosecutors argue, StarTribune (Aug. 24, 2020); Assoc. Press, Prosecutors Depict Ex-Officer as Complicit in Floyd’s Death, N.Y. Times (Aug. 25, 2020); State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause, State v. Thao, Court file No. 27-CR-20-1249 (Hennepin County District Court Aug. 24, 2020); Affidavit of Matthew Frank, State v. Thao, Court file No. 27-CR-20-1249 (Hennepin County District Court Aug. 24, 2020).
[3] Defendant Thao’s Dismissal Motion, dwkcommentaries.com (Aug. 25, 2020).
[4] Memorandum in Support of Motion to Dismiss (n. 1), at 9-12.
[5] Id. at 5-6.
[6] Ex. 1 (Minneapolis Police Department’s Policy and Procedure Manual, sec. 5-303.01) in Attachments to Frank Affidavit (8/24/20), State v. Thao, Court file No. 27-CR-20-1249 (Hennepin County District Court Aug. 24, 2020).
