As noted in a prior post, on May 12, attorneys for Tou Thao filed a motion for sanctions for alleged prosecutorial misconduct, and on May 20, the State submitted a blistering opposition to that motion. Also on May 20, the Minnesota Court of Appeals heard arguments in the State’s appeal of the trial court’s denial of its motion to add a charge of aiding and abetting third-degree murder against the other three ex-officers.
Thao’s Motion 
The basis for this motion was the State’s allegedly (a) having Dr. Roger Mitchell, a former Chief Medical Examiner for Washington, D.C., pressure Dr. Andrew Baker, the Hennepin County Medical Examiner, to change his preliminary findings of “no physical findings [supporting] a diagnosis of traumatic asphyxia or strangulation” to the final findings of “neck compression;” and (b) after Chauvin’s chief medical expert (Dr. Fowler) testified that in his opinion the cause of death was undetermined, Dr. Mitchell wrote to Maryland officials to investigate Dr. Fowler’s qualifications and such an investigation was commenced by the Maryland Attorney General.
On that basis the motion requested an order (a) dismissing the criminal charges against Thao; (b) barring seven attorneys (Including Attorney General Ellison and Neal Katyal) from participating in any trial against Thao; (c) asserting complaints about these attorneys to their professional responsibility authorities; and (d) requiring the State to report Dr. Mitchell to the appropriate medical boards.
On the same day of the motion, the State submitted a short letter to the Court from Minnesota Assistant Attorney General Matthew Frank saying that this motion asserted, “Bizarre allegations . . . [that] are false and wrong.”
A more detailed and fierce response from the State was filed on May 20. It asserted that this “motion is another bad-faith attempt by Defendant Thao to debase the State, disqualify members of the prosecution team, and divert attention from his role in the death of George Floyd on May 25, 2020. . . .These preposterous accusations are simply false, and . . .Thao does not even offer a shred of evidence to support this baseless conspiracy theory. If anything, the very facts . . . Thao offers [the sworn testimony of Dr. Baker]disprove the accusations he makes.”
“The State also cannot, and did not, control or influence the response to Dr. Fowler’s public testimony from the medical community at large . . . . [Over 400] medical professionals found Dr. Fowler’s testimony to be so contrary to accepted medical standards that they publicly expressed concern about the credibility of Dr. Fowler’s work. . . .[This] is evidence against, not for, the wild accusations of defense counsel.”
Thao’s attorney “has launched a frivolous motion practice campaign to unfairly prejudice the prosecution in the public domain, replete with gratuitous and unfounded personal attacks on the prosecution. To make false accusations of coercion against the State n an attempt to tarnish professional reputation, taint the jury pool, and advance Defendant’s interest in the public eye is beyond the pale.”
Therefore, argued the State, “the court should summarily deny ]this motion} . . .and remind defense counsel of his obligation to refrain from frivolous motion practice.”
Appellate Argument Over Aiding and Abetting Third-Degree Murder 
On May 20, the Minnesota Court of Appeals heard arguments in a pending appeal by the State over whether or not the three co-defendants (Thomas Lane, J. Alexander Kueng and Tou Thao) could be charged with aiding and abetting third-degree murder of George Floyd.
Neal Katyal for the State argued that this appellate court already had decided that a charge of third-degree murder was viable against Derek Chauvin, for which he was convicted in April, and that appellate decision “should settle the [issue for the other three defendants].
For the three co-defendants attorney Deborah Ellis argued that it was legally impossible for them to be charged with aiding and abetting third-degree murder because that is an unintentional act and relies on a defendant’s reckless state of mine, but aiding and abetting must be intentional. This, she argued, required the principal actor and the accomplice to be of the same mindset.
One of the three appellate judges, Judge Renee Worke, said this was a “novel” argument while Attorney Katyal said this argument was just wrong. A defendant and aids a crime of recklessness if he intentionally assist in the reckless act, knowing it is reckless. Moreover, the State could just charge the three co-defendants as principal actors.
 See Developments in State Criminal Cases for George Floyd Killing, dwkcommentaries.com (May 13, 2021); State’s Response to Defendant Thao’s Motion for Sanctions Regarding Alleged Witness Coercion, State v. Thao, Hennepin County District Court, Court File No. 27-CR-20-12949 (May 20, 2021); Olson, Prosecutors deny defense claim that medical examiner’s opinion in George Floyd’s death was coerced, StarTribune (May 20, 2021).
 Forlit (AP), Appeals court hears case of 3 ex-cops charged in Floyd death, StarTribune (May 20, 2021).