Hennepin County District Court Enters Order Regarding Trial of Three Former Minneapolis Policemen Over Killing of George Floyd 

On April 25, 2022, Hennepin County District Court Judge Peter A. Cahill issued the Trial Scheduling and Management Order and Memorandum Opinion regarding the June 13, 2022, commencement of the trial of three former Minneapolis policemen (Tou Thao, Thomas Kiernan Lane and J. Alexander Kueng) over the killing of George Floyd on May–, 2020.[1]

Trial Management Order

  1. Specified information about any expert witnesses not previously disclosed shall be submitted by May 1, 2022.
  2. Motions in limine shall be submitted by May 13, 2022, with supporting memoranda by May 20 and responsive memoranda by June 3.
  3. Trial witness lists shall be submitted by May 13, 2022.
  4. Trial exhibit lists and proposed jury instructions shall be submitted by June 10, 2022.
  5. Trial will commence at 9:00 a.m. on June 13, 2022, in Hennepin County Courtroom C-1856.
  6. Limits at trial on the number and conduct of the parties’ attorneys or support staff were specified.
  7. Limits at trial on the number and conduct of spectators at trial for the Media Coalition and the George Floyd and defendants’ families were specified.
  8. Hearing on motions in limine or administrative matters will be heard on June 13, 2022, and, if necessary, on subsequent days.
  9. Jury selection will begin on June 14, 2022.
  10. Jurors and potential jurors shall be partially sequestered.
  11. Opening statements and presentation of evidence will begin on July 5, 2022.
  12. Witnesses, prior to testifying, shall be sequestered.
  13. Audio and video recording and livestreaming of the trial will not be allowed except as expressly permitted by Minn. R. Gen. P. 4.02(d).
  14. At least three overflow courtrooms with audio and video feed from the trial courtroom will be provided for family members of George Floyd and the defendants, the media and the public.

The Court’s Memorandum Opinion

The last 27 pages of this Court document set forth the legal bases for the following conclusions:

  • The Minnesota Rules of Practice Do Not Currently Authorize Livestreaming of Trials Over the Objection of a Party;
  • The Unusual and Compelling Circumstances of the Covid-19 Pandemic at the Time of the Chauvin Trial Have Substantially Abated and the Supreme Court Rules in Force in the First Half of 2021 Mandating Social Distancing, Mask Wearing, and Other Precautionary Measures Due to the Covid-19 Pandemic Are No Longer in Force, Obviating Resort to Rule 1.02;
  • This Court Now Is Precluded by Rule 4.02(d) from Ordering Livestreaming of the Trial Over Objections of the Defendants; and
  • Partial Jury Sequestration Is Appropriate.

Reactions [2] 

An attorney for the Media Coalition, which wanted livestreaming of the trial, said that this order was “deeply disappointing [because] thousands of people interested in this important trial won’t be able to watch it. The court’s decision is based on its view that, with the world returning to normal after the pandemic, it must revert to Supreme Court rules that require everyone involved to consent to cameras before they are allowed. The defendants don’t consent. Our Supreme Court needs to change the rule. They are working on it. I wish they could have worked faster.”

Minnesota Assistant Attorney General, Matthew Frank, in a motion before the issuance of this order, said that prohibiting a livestream after allowing one during Chauvin’s trial could harm public confidence in the process. “In the public’s mind, this trial and Chauvin are linked. If this court eliminates audio-visual coverage at this late hour, the broader public may receive the unintended message that they no longer have the right to observe proceedings.”

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[1] Trial Scheduling and Management Order and Memorandum Opinion, State v. Thao, Lane & Kueng, Hennepin County District Court files 27-CR-20-12949, 27-CR-20-12951, 27-CR-20-12953 (April 25, 2022).

[2] Mannix, Judge: Trial of 3 ex-Minneapolis police officers in George Floyd death won’t be livestreamed, StarTribune (April 26, 2022); Karnowski (AP), Trial of 3 ex-officers in Floyd death won’t be livestreamed, StarTribune (April 26, 2022).

Postponement of State Court Trial of Ex-Policemen for Killing of George Floyd                 

On January 12, 2022, Hennepin County District Court Judge Peter Cahill postponed the commencement of the state trial of three Minneapolis ex-policemen (J. Alexander Kueng, Thomas Lane and Tou Thao) on charges of aiding and abetting the May 2020 second-degree murder and manslaughter of George Floyd. [1]

The Judge ordered the parties’ attorneys to meet before January 16 to select a new trial date between March 14, 2022 and January 9, 2023. If they cannot agree on a new date, the trial will start on March 7 as previously scheduled.

In the meantime, the three men are scheduled to go on trial in federal court starting January 20 on charges of violating Mr. Floyd’s civil rights during his arrest. If that trial has not concluded by the new date for the state trial, the latter shall be continued on a daily basis until the attorneys are available.

In addition, Judge Cahill stated that in the state case the attorneys should set aside three weeks for jury selection and five weeks for trial testimony.

All of these developments happened after the state court trial, conviction and sentencing of Derek Chauvin to 22.5 years imprisonment for second-degree and third-degree murder and second-degree manslaughter of Mr. Floyd.[2] And then in mid-December 2021 Chauvin unexpectedly pleaded guilty to the federal charges against him over the killing of Mr. Floyd with Chauvin to serve the state and federal sentences concurrently in a federal prison.[3] Thus ended Chauvin’s criminal charges and trials over Floyd’s death.

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[1] Xiong, State trial of three officers charged in George Floyd killing postponed from March date, StarTribune (Jan. 12, 2022); Order Granting Joint Request To Continue Trial Date, State v. Thao, Lane, Kueng, Henn. Cty Dist. Ct., File Nos. 27-CR-20-12949, 12951 & 12953 (Jan. 12, 2022).

[2]  See the “Derek Chauvin State Criminal Trial” and “State Court Sentencing of Derek Chauvin” sections of List of Posts to dwkcommentaries—Topical: George Floyd Killing.

[3] Derek Chauvin Pleads Guilty to Federal Criminal Charges Over Killing of George Floyd, dwkcommentaries.com (Dec. 16, 2021).

Court Affirms Livestreaming of George Floyd Criminal Trial  

On November 5, Hennepin County District Court Judge Peter Cahill ordered that the joint criminal trial of the four defendants—Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thao–subject to the conditions contained in the order, including livestreaming. Thereafter the State objected to livestreaming while it was supported by the Media Coalition. [1]

On December 18, the Judge affirmed its original order for such coverage of the trial and denied the State’s motion to reconsider that order. [2]

The latest order conceded that the Court’s allowing audio and video coverage exceeds that allowed by Minn. Gen. R. Prac 4.02(d), but pointed out that another provision of these rules (1.02) ‘provides that ‘[a] judge may modify the application of [the General Rules of Practice] in any case to prevent manifest injustice.’

The Court concluded this latest order with this statement.  “[T]he State’s suggested procedures to accommodate the Defendants’ Sixth Amendment rights [to a public trial] and the public’s and press’ First Amendment rights to a public trial would be, at best, inadequate, and at worst, mere lip-service to the Defendants’ and the public’s constitutional rights.” (P. 7.)

Conclusion

With this order and the previous order denying the motions for sanctions against the State for alleged deficiencies in discovery, the only pending motions awaiting decision are (i)  Lane’s motion to reconsider joinder of the four defendants for one trial; (ii) the  State’s objection to evidence of Floyd’s prior incident with the Minneapolis police; and (iii) Chauvin and Lane’s objections to the State’s intent to offer evidence of prior incidents involving Chauvin’s alleged use of excessive force.[3]

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[1] Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing, dwkcommentaries.com (Nov. 5, 2020)(order for livestreaming); Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases, dwkcommentaries.com (Nov. 18, 2020)(includes State’s objection to livestreaming); Recent Developments in George Floyd Criminal Cases, dwkcommentaries.com(Dec. 12, 2020)(summary of State’s arguments against livestreaming); George Floyd Cases: Media for Livestream; Chauvin Criticizes State’s Disclosures, dwkcommentaries.com (Dec. 15, 2020).

[2] Order Denying Motions To Reconsider and Amend Order Allowing Audio and Video Coverage of Trial, State v. Chauvin, Dist. Ct. File 27-CR-20-12646 (Dec. 18, 2020); Sawyer, Judge upholds decision to livestream trial of officers in George Floyd killing, StarTribune (Dec. 18, 2020).

[3] Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases, dwkcommentaries.com (Nov. 18, 2020).

Court Issues Order on Expert Disclosures in George Floyd Criminal Cases     

On December 17, Hennepin County District Court Judge Peter Cahill ordered the following:[1]

  • On January 11 at 3:00 p.m. a Zoom remote hearing will be held for consideration of “[v]arious motions by Defendants for continuation of the trial date, attorneys’ fees, and other sanctions for the State’s alleged discovery violations.” (Para. C)
  • By January 15, “All Defendants shall provide initial expert disclosures of experts’ names, curricula vitae and general subject matter on which they will give testimony. (Para. A)
  • By January 19, “the State shall disclose expert reports and findings, and complete written summaries of the subject matter of each expert’s testimony.” (Para. B)
  • By February 8, “Defendants shall disclose expert reports and findings, and complete written summaries of the subject matter of each expert’s findings.” (Para. B)
  • All such expert disclosures “must include all findings, opinion, or conclusions by which each expert is expected to testify; the basis for the findings, opinions and conclusions; and each expert’s qualifications, if not already evident from curricula vitae.” (Para. B.)

On the next day, December 18, the State filed a brief responding to defendant Thao’s motion for sanctions.[2] Its Introduction succinctly says what is amplified in the reset of its pages:

  • “At issue in Thao’s motion are two documents held by the United States Attorney’s Office: notes taken by and FBI agent of an interview of Dr. Baker [the Hennepin County Medical Examiner] and a letter from Dr. Baker, through his legal counsel, clarifying those notes. The State did not initially have possession or control of these documents, but diligently sought to obtain them.” Once the State obtained them, the State promptly disclosed the documents to the defendants in a matter of days.”
  • Although Thao allegedly found out about this purported discovery violation on October 28 [when these two documents were provided by the State, he] filed this motion on December 11, just four days before his December 15 deadline to make expert witness disclosures. . . {Therefore, his] unfounded allegation of a discovery violation appears to be nothing more than cover for a request for more time to meet his discovery violation.”

This skirmish over discovery seems obviated by the above Court order.

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[1]  Order, Expert Witness Disclosure Deadlines and Hearing on Defendants’ Motions for Trial Continuance, State v. Chauvin, Dist. Ct. File 27-CR-20-12646 (Dec. 17, 2020).

[2]  State’s Response to Defendant Thao’s Motion for Sanctions and Hearing Regarding Discovery by State, State v. Thao, Dist. Ct. File NO. 27-CR-20-12949 (Henn. Cty. Dist. Ct. Dec. 18, 2020). Thao’s motion for sanctions is discussed in the fourth section of Recent Developments in George Floyd Criminal Cases, dwkcomentaries.com (Dec. 12, 2020).