Ex-Officer Lane Moves for Dismissal of Criminal Charges for George Floyd Killing

On July 7, the attorney for ex-officer Thomas Lane moved to dismiss the charges that he had illegally aided and abetted the May 25th alleged murder and manslaughter of George Floyd. The prosecution’s response is due on August 12 followed by a reply from Lane’s attorney with the hearing on the motion likely to be the one previously scheduled for September 11.[1]

The brief in support of the motion made the following arguments:

  1. “There is not substantial admissible evidence to survive a motion for a directed verdict that Thomas Lane aided and abetted second degree murder or manslaughter.”
  2. “There is no evidence in the voluminous discovery that Officer Lane played an intentional role in aiding the commission of a crime. There is no circumstantial evidence Lane knew that Chauvin was committing a crime. Hence, the legal requirements showing he acted with intent cannot be met.”
  3. “Lane did not intentionally aid, advise, hire, counsel, or conspire with Chauvin or otherwise procure Chauvin to commit second degree murder. Lane did not encourage any alleged criminal actions of Chauvin. He did not know and had no reason to believe that a third degree assault was being committed, nor did he intend for the restraints of his Floyd’s legs to help commit a crime.”
  4. “Lane did not know what Chauvin was thinking while restraining Floyd. Chauvin did not verbally tell Lane anything about his intentions other than waiting for the ambulance to arrive. Lane knew Floyd needed to be restrained and he knew Chauvin was authorized to use reasonable force to restrain.”

Lane’s attorney also submitted transcripts of the body-cam footage for Lane and ex-cop and co-defendant J. Alexander Kueng. Here are extracts from these transcripts:

  • When Lane approached the vehicle containing Floyd and two other individuals, Lane drew his pistol when Floyd did not immediately show his hands. Floyd said, “”I’m sorry, I’m so sorry. God dang man. Man, I got shot. I got shot the same way, Mr. Officer, before.”
  • When Lane ordered him to get out of the car, Floyd said, “Please don‘t shoot me, Mr. Officer. Please, don’t shoot me man. Please. Can you not shoot me, man?”
  • Lane and Kueng then grabbed Floyd’s arms, prompting him to say, ““I’m not going to do nothing… I’m sorry Mr. Officer, I’ll get on my knees, whatever.”
  • Lane then pulled Floyd out of the vehicle and asked the woman in the car (Schwanda Renee Hill), “Why’s he getting all squirelly and not showing us his hands, just being all weird like that?”
  • Hill: “I have no clue, because he’s been shot before.”
  • Lane: “Well I get that, but still when officers say ‘Get out of the car.’ Is he drunk? Is he on something?”
  • Hill: “”No, he got a thing going on, I’m telling you about the police … He have problems all the time when they come, especially when that man put that gun like that.”
  • After Kueng escorted Floyd from his car to a nearby sidewalk and sat him down, Floyd said, ‘Thank you, man. Thank you, Mr. Officer,” as Floyd remained cooperative. He gave Kueng his name and date of birth, adding once again that ‘I got shot last time, same thing, man.’”
  • “Kueng then explained to Floyd that he was being detained for suspicion of passing a fake bill. Floyd said he understood.”
  • Kueng: “And do you know why we pulled you out of the car? Because you was not listening to anything we told you,”
  • Floyd: “Right, but I didn’t know what was going on,”
  • Kueng: “You listen to us, and we will tell you what’s going on, all right?”
  • Floyd: “Yes sir.”
  • “Lane then asked Floyd if he was on something, while Kueng asked about the foam around his mouth. Floyd said he was scared, and that he had been playing basketball earlier.”
  • “The two officers then attempted to place Floyd in the back of [their]squad [car], while he again pleaded with them not to, saying he was claustrophobic.”
  • Lane or Kueng: “You can’t win.”
  • Floyd: “I’m not trying to win . . . I’ll get on the ground, anything.”
  • “After more struggle, Floyd began to collapse on the ground, saying, ‘I’m going to lay on the ground, oh, I’m coming down.’”
  • As Lane and Kueng attempted to put Floyd into the back seat of their squad car, Floyd said, “‘Oh man, God don’t leave me man, please man, please man,’ he pleaded, telling them he was claustrophobic as the officers repeatedly ordered him into the back of the squad.”
  • Lane or Kueng: “Man, you going to die of a heart attack. Just get in the car.”
  • Lane then offered to sit in the squad car with Floyd and turn on the air conditioner. Floyd said, “”I’m not that kind of guy, man, I’m not that kind of guy … and I just had COVID, I don’t want to go back to that.”
  • After Officer Chauvin arrived, he asked Kueng if the suspect was going to jail, and Kueng explained the man was under arrest for forgery.
  • Chauvin asked the other two officers if they had a “restraint,” and the officers (who?) called for “Code 2” for medics after Lane said the man had banged his head against the partition glass in the squad car, resulting in a cut.”
  • Chauvin told Floyd , “You’re under arrest, guy.”
  • Floyd responded, “”All right, all right. Oh my god. I can’t believe this. I can’t believe this … After Chauvin said, “so you’re going to jail,” Floyd said, Mom, I love you … Tell my kids I love them. I’m dead.”
  • Floyd then was placed on the pavement with Lane holding one of his legs while Kueng was holding his back. Floyd kept saying, “Mama, mama, I can’t breathe. I’m through, I’m through. I’m claustrophobic. My stomach hurts. My neck hurts. Everything hurts. I need some water or something, please. Please? I can’t breathe officer.”
  • As Lane asked Chauvin whether Floyd should be rolled on his side, Chauvin and Kueng said not to do so, and one of the officers called to upgrade the medics to Code 3.
  • Floyd’s final words: ““Come on, man. Oh, oh. l cannot breathe. Cannot breathe. Ah! They’ll kill me. They‘ll kill me. I can’t breathe. Can‘t breathe. Oh!” and “Ah! Ah! Please. Please. Please.”
  • After the medics arrived, Lane did chest compressions on Floyd.
  • One of the medics asked the officers, “Was he [Floyd] fighting with you guys for a long time?”
  • Lane: “ I mean a little bit, but not a long time, maybe a minute or two. We were just trying to get him in the squad and he came out the other end, so we were like we’ll just wait.”
  • Medic: “I wonder what he was on.”
  • Lane: “Not sure but he seemed very agitated and paranoid.”
  • Medic: “That’s a shame.”
  • Lane: “Yeah.”

According to the New York Times’ summary of these transcripts, Floyd told the police officers more than 20 times that he could not breathe and several times said the officers were killing him.

In addition, Lane’s court filing included a 60-page transcript of his interview by the Minnesota Bureau of Criminal Apprehension and that this transcript had Lane responding to the question of whether at any time he felt Floyd was having a medical emergency, with the following: “Yeah, I felt maybe something was going on.” The Times also says Lane’s attorney claims a police photo of the interior of Floyd’s car showed “two crumpled counterfeit $20 bills that were found between the center console and the passenger’s seat.”

Another article in the Washington Post asserts that the “transcripts make clear that Floyd was trying to cooperate with police but was deathly afraid of them, at times telling them that he had had covid-19 and was worried that he was going to die because he couldn’t breathe.”

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[1] Xiong, Former officer Thomas Lane’s attorney seeks dismissal of charges in George Floyd killing, StarTribune (July 8, 2020); Olson. Body camera transcripts: George Floyd repeatedly begged police not to kill him, StarTribune (July 8, 2020); Staff Reports, Read the transcript of Thomas Lane’s body camera footage during George Floyd call, StarTribune (July 8, 2020); Staff Reports, Read the transcript of J. Alexander Kueng’s body camera footage during George Floyd call, StarTribune (July 8, 2020); Memorandum Supporting Motion To Dismiss, State v. Lane, Case No. 27-CR-20-12651 (Henn. Cty. Dist. Ct. July 7, 2020); Oppel, New Transcripts Detail Last Moments for George Floyd, N.Y.Times (July 8, 2020); Bailey, George Floyd warned police he thought he would die because he couldn’t breathe, according to body camera transcripts, Wash. Post (July 8, 2020); Wernau & Barrett, Attorney for Former Officer Asks Court to Dismiss Abetting Charges in George Flynn Killing, W.S.J. (July 8, 2020); George Floyd told officers ‘I can’t breathe’ more than 20 times, transcripts show, Guardian (July 8, 2020).

 

 

 

 

 

 

 

Third Ex-Cop in George Floyd Case Posts Bond and Leaves Jail 

On July 4, Tou Thau, a former Minneapolis police officer charged with aiding and abetting the murder of George Floyd, posted bond of $750,000 and was released with conditions from the Hennepin County Jail.[1] Earlier two other ex-officers charged with the same crime—Thomas Lane and J. Alexander Kueng—had posted the same amount of bond and had been released from jail.[2]

The fourth defendant in the Floyd killing—Derek Chauvin—has not posted a higher bond–$1 million with conditions and $1,250,000 without conditions and thus remains in custody at the Oak Park Heights prison.

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[1] Xiong, Third fired Minneapolis police officer charged in Floyd death is out of jail, StarTribune (July 4, 2020).

[2] Walsh, Fired Minneapolis police officer, Thomas Lane, one of 4 charged in George Floyd’s death, posts bail and leaves jail, StarTribune (June 11, 2020); Another Minneapolis Policeman in George Floyd Cases Makes Bail, dwkcommentaries.com (June 20, 2020).

 

 

Developments in Criminal Cases Over Death of George Floyd

The four defendants in the criminal cases over the death of George Floyd last week made an unusual request for pretrial and trial audiovisual coverage which the court denied, in part. The issues in the cases were analyzed by criminal law experts. And some personal background information of the four defendants have been publicly discussed. After examining these developments, we will  await the results of the pretrial hearing in the four cases on June 29th.[1]

 Motion for Pretrial and Trial Audiovisual Recording [2]

On June 25 the attorneys for the four criminal defendants made a motion for audiovisual recording of pretrial and trial proceedings in the cases. Thomas Plunkett, the attorney for J. Alexander Kueng, on behalf of all defendants, asserted that such relief was “necessary to provide the Defendants with a fair trial in light of the State’s and other governmental actors multiple inappropriate comments and to assure an open hearing in light of the ongoing pandemic.” Those officials, said Plunkett, included “Public Safety Commissioner John Harrington, Minneapolis Mayor Jacob Frey and Minneapolis Police Chief Medaria Arradondo.”

More specifically, Plunkett said, “this relief is necessary to blunt the effects of the increasing and repeated media attacks from the various officials who have breached their duty to the community. These State comments have crescendoed to an extraordinary volume this week with the Chief pronouncing that ‘[w]hat happened to Mr. Floyd was murder.’ The State’s conduct has made a fair and unbiased trial extremely unlikely and the Defendants seek video and audio coverage to let a cleansing light shine on these proceedings. Doing otherwise allows these public officials to geld the Constitution.”

Attorney General Keith Ellison responded by saying that although he supports a public trial, “Cameras could alter the way the lawyers present evidence. Cameras in the courtroom could subject the participants in the trial to heightened media scrutiny and thereby be distracting to conducting the trial.” The chances of  “creating more sensation than understanding” was “very high,” Ellison said.

The Hennepin County District Judge, Peter Cahill, immediately denied the motion for such pretrial coverage while reserving decision on the motion for such coverage of the trial. The Judge stated that Minnesota court rules require both the defense and prosecution to agree for such coverage for pretrial proceedings and that the prosecution did not so agree. In addition, said the Judge, such coverage “would risk tainting a potential Hennepin County jury pool.”

Analysis of Issues in These Criminal Cases[3]

A journalist reports, “Veteran defense attorneys say the prosecution’s case against Chauvin is strong, while a series of unique circumstances pose challenges to both prosecutors and defense attorneys.”

Several facets of these cases seem to favor the prosecution. These cases do not involve “split-second” decisions on use of force which often lead a jury to avoid second guessing such decisions. Moreover, “Floyd warned the officers of his own impending death after repeatedly telling them he couldn’t breathe,” and bystanders were making the same warning. Finally the three officers charged with “aiding and abetting” could cause a crack in the alleged “blue wall of silence” protecting officers.

Indeed, at their initial appearances, the attorneys for Lane and Kueng argued that their clients were rookies who relied on Chauvin, a 19-year veteran and their training officer, for guidance at the scene.

A prominent local criminal defense attorney, Joe Friedberg, thought that Lane’s twice suggesting turning Floyd over and later performing CPR on him was strong evidence he had no intent for Floyd to die.

Another local criminal defense attorney, Robert Richman, had a different reaction. He thought that Chauvin “could direct the blame at Lane, who was holding down Floyd’s leg as Floyd lay stomach-down in the street, and Kueng, who was holding onto Floyd’s back. It seems that keeping someone … in a prone position on your stomach and having pressure placed on your back causes respiratory difficulties.” Perhaps “it was the other two officers holding him down that caused the breathing difficulties,” rather than Chauvin kneeling on the side of Floyd’s neck.

Another complication was the existence of two different autopsy reports. “The Hennepin County Medical Examiner’s Office found that Floyd died when his heart stopped  while he was being restrained, noting that the presence of fentanyl intoxication and recent methamphetamine were “other significant conditions” while the autopsy commissioned by the attorneys for Floyd’s family said he died of asphyxia. These provide bases for defense arguments that Floy had started to die before Chauvin put his knee on the neck.

New Rule for Use of Bodycam Footage[4]

On June 27 Minneapolis Mayor Jacob Frey and Police Chief Medaria Arradondo announced a new rule for officers’ review of their body camera footage. Now the officer “as soon as practical” must write and submit his or her written report of the incident before looking at that footage and before talking with anyone other than the incident commander and the lead investigator. This new rule purportedly will provide a more accurate account of the officer’s recollection of the incident.

The Police Officers’ Backgrounds[5]

The police personnel files for the four officers and published articles reveal the following  details:

  • Derek Chauvin. He attended Park High School in Cottage Grove, Minnesota, but did not graduate. After getting his GED he attended Dakota County Technical College, Inver Hills Community College and Metropolitan State University, all in Minnesota. Previous jobs include working security, and food service including at a McDonald’s. Chauvin also had two periods of active service in the U.S. Army. From September 1996 to February 1997 he was stationed in Rochester, Minnesota with a job in military police. He served again from September 1999 to May 2000 in military police, at Hohenfels, Germany where his job duties as including criminal investigations, traffic enforcement and proactive patrol.

During his 19-year career with the Minneapolis Police Department, Chauvin was involved with several police shootings, includes both commendations and more than 15 conduct complaints. Almost all the complaints were closed without discipline, records show, suggesting the allegations weren’t sustained. The nature of the complaints wasn’t made public. The file includes a 2008 letter of reprimand Chauvin received for the two violations involving “discretion” and a squad car camera. “This case will remain a B violation and can be used as progressive discipline for three years,” the letter notes. Chauvin received a Medal of Commendation in 2008 for disarming a man outside the El Nuevo Rodeo club on E. Lake Street while working security off-duty in his uniform. He was also recommended for a Medal of Valor in 2006 related to the shooting death of Wayne Reyes, a stabbing suspect who fled in his truck with officers in pursuit. When Reyes stopped and climbed out of the truck, police said he swung his sawed-off shotgun toward the six officers, all of whom fired their weapons.

Chauvin his married , but immediately after his arrest for the Floyd death, she filed for divorce with her attorney saying, “She is devastated by Mr. Floyd’s death and her utmost sympathy lies with his family, with his loved ones and with everyone who is grieving this tragedy.”

  • Tou Thao. The 11-year veteran and native Hmong speaker from Coon Rapids, Minnesota first applied to the department as a community service officer following stints in food service and as a security guard. He was among those laid off three days before Christmas in 2009 as the police department faced a $13 million budget shortfall. In a termination letter, a supervisor assured him the action was not related to his job performance. Officials called him back to work almost exactly two years later.

Thao and another officer were the subjects of a 2017 police brutality lawsuit. Lamar Ferguson, a black man, alleged that in 2014 the two officers told him they were serving a warrant for his arrest, then beat him, breaking his teeth, while he was handcuffed. The city of Minneapolis paid $25,000 to settle the civil rights case.

  • Thomas Lane. A University of Minnesota graduate in sociology of law, criminology and deviance. He worked with at-risk youth as a juvenile detention guard and probation officer in the Twin Cities before applying as a police recruit at age 35. He also had volunteer work mentoring Somali youth and school kids.
  • Alexander Koenig. At age 26, he is the youngest of the four officers and is of mixed-race and identifies as African-American. In 2010 he and two siblings made several trips to Haiti to help at an orphanage, once after its 2010 earthquake.He was captain of the varsity soccer team at Patrick Henry High School in Minneapolis, where he graduated in 2012. He also played for the Cruz Azul Minnesota soccer club. He attended Monroe College, Minneapolis Community & Technical College and the University of Minnesota, graduating from the last in 2018 with a major in sociology of law, criminology and deviance and becoming conversational in the Russian language. His work history includes a job as security monitor at the University of Minnesota and working in loss prevention at Macy’s. He also worked at Target, and he coached youth baseball and soccer at the Brooklyn Center Community Center.

Kueng had seen a sibling arrested and treated poorly by sheriff’s deputies and had told friends he was joining the police to help protect people close to him from police aggression as the best way to fix a broken system.

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[1] This blog has published posts about the Floyd death and related issues of police reform. See List of Posts to dwkcommentaries—Topical: George Floyd Killing; List of Posts to dwkcommentaries—Topical: Police Reform.

[2]  Xiong & Montemayor, Judge denies audiovisual coverage of hearings for former officers charged in George Floyd killing, StarTribune (June 26, 2020).

[3] Xiong, In trial over George Floyd’s killing, both defense, prosecution face unique challenges, StarTribune (June 27, 2020).

[4]] Klecker, Minneapolis mayor, police chief announce tighter body-camera rules, StarTribune (June 29, 2020).

[5] Bjorhus & Sawyer, Personnel records shed light on four Minneapolis police officers charged in George Floyd’s death, StarTribune (June 4, 2020); Bjorhus, A deeper look at the four officers fired after George Floyd death, StarTribune (June 1, 2020); Barker, Eligon & Furber, Officers Charged in George Floyd’s Death Not Likely to Present United Front, N.Y.Times (June 4, 2020); Barker, The Black Officer Who Detained George Floyd Had Pledged to Fix the Police, N.Y. Times (June 27, 2020); Wernau, The Other Police Officers Charged in George Floyd Killing, W.S.J. (June 29, 2020).

 

Another Minneapolis Policeman in George Floyd Cases Makes Bail

On June 19, Police Officer J. Alexander Kueng posted bail of $750,000 (with conditions) and was released from jail.[1]

He has been charged with aiding and abetting second degree murder and second degree manslaughter. The next hearing for him and the other three officers is on June 29.[2]

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[1] Faircloth, Second fired Minneapolis police officer charged in Floyd’s death is released from jail, StarTribune (June 20, 2020).

[2] The Criminal Complaints Against the Other Three Policemen Involved in George Floyd’s Death, dwkcommentaries.com (June 14, 2020).

 

May 25th Calls for Help at George Floyd Scene 

Additional evidence discloses the transcript of the initial 911 call from Cup Foods on May 25th that started George Floyd’s encounter with the Minneapolis police and death plus other 911 calls while George Floyd was being pinned on the pavement at 38th Street and Chicago Avenue.

First, here is the initial 911 call, 8:01 p.m., from the Cup Foods store:[1]

  • Caller:{S]omeone comes our store and give us fake bills and we realize it before he left the store, and we ran back outside, they was sitting on their car. We tell them to give us their phone, put their (inaudible) thing back and everything and he was also drunk and everything and return to give us our cigarettes back and so he can, so he can go home but he doesn’t want to do that, and he’s sitting on his car cause he is awfully drunk and he’s not in control of himself.
  • Operator: what type of vehicle does he have?
  • Caller: And…. um he’s got a vehicle that is ah…ah he got a vehicle that is ah…one second let me see if I can see the license. The driver license is BRJ026.
  • Operator: Okay, what color is it?
  • Caller: It’s a blue color. It’s a blue van.
  • Operator:Blue van?
  • Caller:Yes, van.
  • Operator:Alright blue van, gotcha. Is it out front or is it on 38th St.?
  • Caller: Ah it’s on 38th St.
  • Operator:On 38th St. So, this guy gave a counterfeit bill, has your cigarettes, and he’s under the influence of something?
  • Caller:Something like that, yes. He is not acting right.
  • Operator:What’s he look like, what race?
  • Caller: Um, he’s a tall guy. He’s like tall and bald, about like 6…6½, and she’s not acting right so and she started to go, drive the car.
  • Operator:Is it a girl or a boy that did this?
  • Caller: It is a man.
  • Operator: Is he white, black, Native, Hispanic,  Asian?
  • Caller:Something like that.
  • Operator:Which one? White, black, Native, Hispanic, Asian?
  • Caller: No, he’s a black guy.”

Second, here (in bold) are the 911 calls while Mr. Floyd was pinned to the pavement on 38th Street that are interspersed with events at the scene according to this blogger’s judgment and the criminal complaint against Officer Derek Chauvin:[2]

  • 8:08 p.m. Officers Thomas Lane and J.A. Kueng arrive at the scene.
  • 8:14 p.m. Officers Lane and Kueng “stood Mr. Floyd up and attempted to walk Mr. Floyd to their squad car. As the officers tried to put Mr. Floyd in their squad car, Mr. Floyd stiffened up and fell to the ground. Mr. Floyd told the officers he was not resisting but he did not want to get in the back seat and was claustrophobic.”
  • 8:?? p.m. Officers Derek Chauvin and Tou Thao arrive at the scene.
  • 8:19:38 p.m. Chauvin “pulled Mr. Floyd out of the passenger side of the squad car . . . and Mr. Floyd went to the ground face down and still handcuffed. Kueng held Mr. Floyd’s back and Lane held his legs.”
  • 8:24:24 p.m. “Mr. Floyd stopped moving.”
  • 8:25:31 p.m. The “the video appears to show Mr. Floyd ceasing to breathe or speak. Lane said, ‘want to roll him on his side.’ Kueng checked Mr. Floyd’s right wrist for a pulse and said, ‘I couldn’t find one.’ None of the officers moved from their positions.”
  • 8:?? p.m. 911 call from an off-duty firefighter, who said, “I am on the block of 38th and Chicago and I literally watched police officers not take a pulse and not do anything to save a man, and I am a first responder myself, and I literally have it on video camera. I just happened to be on a walk so, this dude, this, they (expletive) killed him so…” The firefighter asked to speak to the officers’ supervisors, but the line disconnected.
  • 8:27:24 p.m. Chauvin “removed his knee from Mr. Floyd’s neck. An  ambulance and emergency medical personnel arrived, the officers placed Mr. Floyd on a gurney, and the ambulance left the scene. Mr. Floyd was pronounced dead at Hennepin County Medical Center.”
  • 8:30? p.m. 911 dispatcher who was watching real-time footage of the Floyd arrest called a supervisor and said, “I don’t know, you can call me a snitch if you want to but we have the cameras up for [squad] 320’s call, and…I don’t know if they had to use force or not, but they got something out of the back of the squad, and all of them sat on this man, so I don’t know if they needed you or not, but they haven’t said anything to me yet.” The unnamed supervisor responded, “Yeah, they haven’t said anything yet…just a takedown, which doesn’t count, but I’ll find out.” The dispatcher replied, “No problem, we don’t get to ever see it so when we see it we’re just like, well, that looks a little different, but…” This call ended at 8:31 p.m.
  • 8:32 p.m. 911 call by a bystander who said an officer “pretty much just killed this guy that wasn’t resisting arrest.”
  • 8:45 p.m. A supervisor, Sgt. David Pleoger, arrived at the scene.

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[1] Minneapolis Police Department, 911 Call Transcript. Incident Number: 20-1401629, (May 25, 2020), 20:01:14); Martinez, Minneapolis releases transcript of George Floyd 911 call, CBS News (May 29, 2020).

[2] Jany, Phone tapes: Concerned Minneapolis 911 dispatcher asked police supervisor to respond to George Floyd scene, StarTribune (June 15, 2020). The Criminal Complaint Against Derek Chauvin Over the Death of George Floyd, dwkcommentaries.com (June 12, 2020).

 

The Criminal Complaints Against the Other Three Policeman Involved in George Floyd’s Death 

As is now well known, four Minneapolis policemen were involved in the May 25th death of George Floyd.

On May 29th and June 3rd criminal charges were filed against Derek Chauvin, the one who placed his knee against Floyd’s neck; the later superseding pleading set forth charges of second and third degree murder and second degree manslaughter, all as discussed in a prior post.

Also on June 3rd Minnesota Attorney General Keith Ellison filed criminal charges against the other three policemen who were involved—Thomas K. Lane, J.A. Kueng and Tou Thao: aiding and abetting second degree murder and second degree manslaughter.[1]

In announcing these new charges and the additional charge against Chauvin, Ellison said the cases were still under investigation and encouraged anyone with additional evidence to come forward and cooperate. “We are following the path of all evidence, wherever it leads. We are investigating as quickly as we can, because speed is important. We are also investigating as thoroughly as we can, because thoroughness is also important — and thoroughness takes time.”

“[Such] thoroughness is important because every link in the prosecutorial chain needs to be strong. It needs to be strong because trying this case will be hard. Winning a conviction will be hard. I say that not because I doubt our resources or abilities or resolve, but because history shows that trying and winning a case like this one is hard.“[2]

At their initial hearing in June bail for each of the three officers was set at $1 million (without conditions) and $750,000 (with conditions), and on June 10 Lane posted bail of $750,000 and was released from jail.[3]

Here we will examine and analyze the specific allegations of these charges against the other three policemen.

Criminal Charges Against the Other Officers

All three face the same two Counts:

Count I. Aiding and Abetting Second Degree Murder (Unintentional While Committing a Felony)(Minn. Stat. 609.19.2(1) with reference to 609.05.1. “That on or about May 25, 2020, in Hennepin County, Minnesota, [Lane/Kueng/Thao]  intentionally aided, advised, hired, counseled, or conspired with or otherwise procured the other to commit the crime, namely causing the death of a human being, George Floyd, 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, namely assault in the third degree.”

Count II. Aiding and Abetting Second Degree Manslaughter (Culpable Negligence Creating Unreasonable Risk) (Minn. Stata. 609.205(1) with reference to 609.05.01. “That on or about May 25, 2020, in Hennepin County, [Lane/Kueng/Thao] intentionally aided, advised, hired, counseled, or conspired with or otherwise procured the other to commit the crime, namely caused the death of another, George Floyd, by his culpable negligence, creating an unreasonable risk and consciously took the chances of causing death or great bodily harm to another, George Floyd.”

The three complaints also contained the following essentially identical Statement of Probable Cause (except where indicated, Lane, Kueng and Thao had unique passages). These three Statements of Probable Cause also are the same, in many respects, as the Statement of Probable Cause in the Chauvin complaints):

  • “On May 25, 2020, someone called 911 and reported that a man bought merchandise from  a Cup Foods at 3759 Chicago Avenue in Minneapolis, Hennepin County, Minnesota with counterfeit $20 bill. At 8:08 p.m. Minneapolis Police Department (MPD) Officers Thomas Lane . . . and J.A. Kueng . . . arrived  with their bodyworn cameras (BWCs) activated and running. The officers learned from store personnel that the man who passed the counterfeit $20 was parked in a car around the corner  from the store on 38th Street.”
  • “BWC video obtained by the Minnesota Bureau of Criminal Apprehension shows that the Officers approached the car, Lane on the driver’s side and Kueng on the passenger  side. Three people were in the car; George Floyd was in the driver’s seat, a known adult male was in the passenger seat and a known adult female in the backseat. As [Lane] began speaking with Mr. Floyd, [Lane] pulled his gun out and pointed it at Mr. Floyd’s open window and directed Mr. Floyd to show his hands. When Mr. Floyd put his hands on the steering wheel, [Lane] put his gun back in its holster.”
  • “While [Kueng] was speaking with the front seat passenger, [Lane] ordered Mr. Floyd out of the car, put his hands on Mr. Floyd and pulled him out of the car. [Lane] handcuffed Mr. Floyd.”
  • “Once handcuffed, Mr. Floyd  walked with [Lane] to the sidewalk and sat on the ground at [Lane’s] direction. When Mr. Floyd sat down he said, “thank you man” and was calm. In a conversation that lasted just under two minutes, [Lane] asked Mr. Floyd for his name and identification. [Lane] asked Mr. Floyd if he was “on anything” and noted there was foam at the edges of his mouth. [Lane] explained that he was arresting Mr. Floyd for passing counterfeit currency.”
  • “At 8:14 p.m., . . . [Kueng] and [Lane] stood Mr. Floyd up and attempted to walk Mr. Floyd to their squad car. As the officers tried to put Mr. Floyd in their squad car, Mr. Floyd stiffened up and fell to the ground. Mr. Floyd told the officers he was not resisting but he did not want to get in the back seat and was claustrophobic.”
  • “MPD Officers Derek Chauvin and Tou Thao then arrived in a separate squad car.”
  • “[Lane] together with the other officers made several attempts to get Mr. Floyd in the backseat of their squad car by pushing him from the driver’s side. As the officers were trying to force Mr. Floyd in the backseat, Mr. Floyd repeatedly said that he could not breathe. Mr. Floyd did not voluntarily sit in the backseat and the officers physically struggled to try to get him in the backseat.”
  • “Officer Chauvin went to the passenger side and tried to get  Mr. Floyd into the car from that side and [Lane] and [Kueng] assisted.”
  • “Officer Chauvin pulled Mr. Floyd out of the passenger side of the squad car at 8:19:38 p.m. and Mr. Floyd went to the ground face down and still handcuffed. [Kueng] held Mr. Floyd’s back and [Lane] held his legs. Officer Chauvin placed his left knee in the area of Mr. Floyd’s head and neck. Mr. Floyd said, ‘I can’t breathe’ multiple times and repeatedly said ‘Mama’ and ‘please,’ as well. At one point, Mr. Floyd said ‘I’m about to die.’ Officer Chauvin and the other two officers stayed in their positions.”
  • [Only in Thao Complaint: “[Thao] initially obtained a hobble restraint from the squad car to restrain Mr. Floyd in that manner, but the officers chose not to use it and maintained their positions. During this time [Thao] looked directly at how Chauvin was restraining Mr. Floyd with Chauvin’s knee on Mr. Floyd’s neck area, and observed that the three officers had Mr. Floyd subdued in this manner. [Thao] then became concerned about a number of citizens who had gathered and were watching the officers subdue Mr. Floyd, and potential traffic concerns, and so {Thao] stood between those citizens and the three officers restraining Mr. Floyd. When one citizen stepped off the curb, imploring Chauvin to get off of Mr. Floyd, [Thao] put his hands on the citizen to keep him back.”
  • “One of the officers said, ‘You are talking fine’ to Mr. Floyd as he continued to move back and forth. [Lane] asked, ‘should we roll him on his side?’ and Officer Chauvin said, ‘No, staying put where we got him.’ [Lane] said, ‘I am worried about excited delirium or whatever.’ Officer Chauvin said, ‘That’s why we have him on his stomach.’ Officer Chauvin and Kueng held Mr. Floyd’s right hand up.”[Only in Lane Complaint: “Despite his comments, [Lane] took no actions to assist Mr. Floyd, to change his position, or to reduce the force the officers were using against Mr. Floyd.”] [Only in Kueng Complaint: “[Kueng] was in between Chauvin and Lane and in a position to hear their comments.”] Officer Chauvin and [Keung] held Mr. Floyd’s right hand up. None of the three officers moved from their positions.”
  • “While Mr. Floyd showed slight movements, his movements and sounds decreased until at 8:24:24, Mr. Floyd stopped moving. At 8:25:31 the video appears to show Mr. Floyd ceasing to breathe or speak. [Lane] said, ‘want to roll him on his side.’ [Keung] checked Mr. Floyd’s right wrist for a pulse and said, ‘I couldn’t find one.’ None of the officers moved from their positions.”
  • “At 8:27:24, Officer Chauvin removed his knee from Mr. Floyd’s neck. An  ambulance and emergency medical personnel arrived, the officers placed Mr. Floyd on a gurney, and the ambulance left the scene. Mr. Floyd was pronounced dead at Hennepin County Medical Center.”
  • “The Hennepin County Medical Examiner (ME) conducted Mr. Floyd’s autopsy on May 26, 2020. While the ME did not observe physical findings supportive of mechanical asphyxia, the ME opines that Mr. Floyd died from cardiopulmonary arrest while being restrained by law enforcement officers. The autopsy revealed that Mr. Floyd had arteriosclerotic and hypertensive heart disease, and toxicology testing revealed the presence of fentanyl and evidence of recent methamphetamine use. The ME opined that the effects of the officers’ restraint of Mr. Floyd, his underlying health conditions, and the presence of the drugs contributed to his death. The ME listed the cause of death as ‘ [c]ardiopulmonary arrest complicating law enforcement subdural, restraint, and neck compression,’ and concluded the manner of death was homicide.”[4]
  • Officer Chauvin, [Lane and Kueng] subdued Mr. Floyd prone to the ground in this manner for nearly 9 minutes. During this time, Mr. Floyd repeatedly stated he could not breathe and his physical condition continued to deteriorate such that force was no longer necessary to control him. Officer Chauvin had his knee on Mr. Floyd’s neck for 8 minutes and 46 seconds in total. Two minutes and 53 seconds of this was after Mr. Floyd was non-responsive. Police are trained that this type of restraint with a subject in a prone position is inherently dangerous. Officer Chauvin’s restraint of Mr. Floyd in this manner for a prolonged period was a substantial causal factor in Mr. Floyd’s losing consciousness, constituting substantial bodily harm, and Mr. Floyd’s death as well.”

 Analysis of the Complaints Against the Other Three Officers

 The predicate for all counts against the other three officers is a finding of Chauvin’s being guilty of second degree murder and/or second degree manslaughter that were analyzed in a prior post.

Under that scenario, the most direct statutory provision for the other policemen is the following: “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.” (Minn. Stat. section 609.05, subd. 1.)(emphasis added).)

Here, there can be no claim that any of these three officers advised, hired, counseled or conspired with or otherwise procured Chauvin to use his knee to restrain Mr. Floyd on the ground for such a long period of time. Thus, the issue for these three officers is whether each of them aided Chauvin in some way to do so.

Since Lane and Kueng physically helped Chauvin in pinning Mr. Floyd to the pavement, they were clearly ‘intentionally aiding” Chauvin in pinning Mr. Floyd.

In addition, the two of them along with Thao failed to intervene to stop Chauvin from his pinning of Mr. Floyd. This raises the issue of  whether the word “aids” includes failure to intervene to stop the commission of the crime of second degree murder or second degree manslaughter. Legal research should examine that issue under cases in Minnesota and other states.

This statutory provision about aiding and abetting is buttressed by the Minneapolis Police Department’s Manual, which under the heading “Duty To Intervene” states: “ Sworn employees have an obligation to protect the public and other employees.” (Manual sec. 5-303.01(A).) And “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.” (Manual sec. 5-303.01(B).)

The Statement of Probable Cause clearly states that these three officers were in close proximity to Chauvin’s pressing his knee against Floyd’s neck, observed that action and Floyd’s reactions, heard Floyd’s saying he could not breathe and had the opportunity to intervene and stop the pressing of Floyd’s neck, but failed to do so.. Indeed, after Floyd stopped moving, they had three more minutes to intervene and stop the pressing of the neck before Chauvin did so himself, but none of the three intervened to stop that action. And after Floyd stopped breathing, they all had nearly two minutes (113 seconds) to intervene, but again did not do so. Lane came closest to doing so when he twice suggested that Floyd be turned over, but then he and the others did nothing further after Chauvin rejected the suggestion. And Officer Kueng could not find a pulse, but then he and the others did not intervene to stop Chauvin’s action in the following near two minutes (113 seconds) of that conduct.

Conclusion

These criminal charges against the other three policemen, according to Christy E. Lopez,  a professor at Georgetown Law School and a former attorney in the U.S. Justice Department’s Civil Rights Division, are “appropriate, but difficult.”  It would be good for the public . . . [and] in the best interest of police.” However, “Social science tells us that intervening to prevent wrongdoing in the middle of a tense incident is far more difficult than we recognize. Notwithstanding the legal duty, there are inhibitors to intervention that most officers will be unable to overcome in the moment unless they have been prepared in advance.”[5]

Lopez adds, “Progressive police agencies and reform advocates have long recognized the importance of officer intervention. Indeed, police have a legal “duty to intervene,” and the Minneapolis Police Department changed its force policy in 2016 to require officers to intervene if they witness another officer using excessive force. The Minnesota attorney general’s Working Group Report on Police-Involved Deadly Force Encounters, released this year, similarly recommended that all law enforcement officers in Minnesota be required to intervene to prevent unreasonable force.”

Such a change, she says, requires training of the police. But “creating a police culture of peer intervention requires more than training. It requires agency reinforcement at every level, and accountability for officers who fail to intervene when they clearly should have — as, again, the video of Floyd’s death depicts.”

The difficulties of one policeman’s intervening to stop another’s abuse are illustrated by a Buffalo New York female officer’s 2016 intervention to stop a white officer’s choking a handcuffed black  protester. The white officer then accused her of jimping on him as he struggled for control and prevailed in an arbitration that led to her being fired. Since then she has been pursuing a lawsuit for reinstatement and passage of a new state law for protection of those who intervene.[6]

At the initial hearing for these three officers, the attorneys for Lane and Keung argued how could new cops like their clients tell or order Chauvin, a policeman with at least 19 years of experience, to stop pressing his knee against Floyd’s neck. Moreover, their lawyers did not mention what may well be true, that there is a culture of policemen backing up each other, and if you intervene and develop a reputation within the police force of being someone who cannot be trusted, then you will not be able to get timely backup when you need it.[7]

This conflict has emerged in other ways.

Immediately after the killing and before the firing of the four police officers involved in this case, Minneapolis Police Federation President Lt. Bob Kroll  stated, ““Now is not the time to rush to judgment and immediately condemn our officers. We ask that the community remain calm and the investigation be completed in full.” And on June 1, Kroll said he was working with the union’s attorneys to help the four fired officers get their jobs back because they were “terminated without due process” while devoting most of his comments to criticizing the city’s handling of resulting riots and making policemen “scapegoats” for the violence.[8]

In addition, the bringing of these criminal charges and the associated protests against the Minneapolis police have caused seven of those officers to resign while another half dozen are in the process of leaving. “Morale has sunk to new lows in recent weeks, say department insiders, as officers reported feeling misunderstood and squeezed by all sides: by the state probe; by protesters, who hurled bricks and epithets their way; by city leaders, who surrendered a police station that later burned on national television, and by the media. Numerous officers and protesters were injured the rioting.”9]

Others at the Police Department have responded differently.[10]

The Minneapolis Police Chief, Medaria Arrandondo, immediately “condemned and fired the four officers involved. He visited the location where Floyd was killed. He spoke directly to Floyd’s family members on national television. He pledged to cooperate with the state’s probe into his department’s practices and make ‘substantive policy changes.’”

On June 11, 14 Minneapolis police officers wrote an open letter to Minneapolis citizens and everyone else. Claiming to speak on behalf of “the vast majority” of their colleagues, the letter’s signatories– Cmdr. Charlie Adams, who now runs its community engagement efforts; Lt. Mark Klukow, who now works in the First Precinct in downtown Minneapolis; Lt. Rick Zimmerman, who runs the homicide unit; Sgt. Darcy Klund, who commands the First Precinct community response team; John Delmonico, the former head of the police union; and others–  said the following:

  • “We wholeheartedly condemn Derek Chauvin. We Are With You in the denouncement of Derek Chauvin’s actions on Memorial Day, 2020. Like us, Derek Chauvin took an oath to hold the sanctity of life most precious. Derek Chauvin failed as a human and stripped George Floyd of his dignity and life. This is not who we are.”
  • “We Are With You and want to communicate a sentiment that is broad within our ranks. We ask that our voices be heard. We are leaders, formal and informal, and from all ranks within the Minneapolis Police Department. We’re not the union or the administration. We are officers who represent the voices of hundreds of other Minneapolis Police Officers. Hundreds. We acknowledge that Chief Arradondo needs each of us to dutifully follow him while he shows us the way. We stand ready to listen and embrace the calls for change, reform and rebuilding.”
  • “We Are With You moving forward. We want to work with you and for you to regain your trust.”

The next event in this important legal proceeding will be hearing in all four criminal cases in Hennepin County District Court on June 29.

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[1] Press Release, Attorney General Ellison charges Derek Chauvin with 2nd-degree murder of George Floy, three former officers with aiding and abetting 2nd degree murder. (June 3, 2020); Complaint, State v.Tou Thao, Prosecutor File No. 33.EC55.0227, Court File No. 27-CR-20-12949 (Dist. Ct., 4th Judicial Dist. June 3, 2020); Complaint, State v. Thomas Kiernan Lane, Prosecutor File No. 33.EC56.0227, Court File No. 27-CR-20-12951 (Dist. Ct., 4th Judicial Dist. June 3, 2020); Complaint, State v. J. Alexander Kueng, Prosecutor File No. 33.EC57.0227, Court File No. 27-CR-20-???? (Dist. Ct., 4th Judicial Dist. June 3, 2020); Shammas, Beilware & Dennis, Murder charges filed against all four officers in George Floyd’s death as protests against biased policing continue, Wash. Post (June 3, 2020); Kornfield, Guarino, Beachum, Thebault, Mettier, Knowles, Chiu, Shepard & Armus, 3 more officers charged in Floyd’s death as protesters gather for 9th night, Wash. Post (June 4, 2020); Montemayor & Xiong, Four fired Minneapolis officers charged, booked in killing of George Floyd, StarTribune (June 4, 2020).

[2] Press Release, Attorney General Ellison charges Derek Chauvin with 2nd-degree murder of George Floyd, three former officers with aiding and abetting 2nd degree murder. (June 3, 2020).

[3]  Initial Hearings in Criminal Cases for Killing of George Floyd, dwkcommentaries.com (June 10, 2020); Karnowski, Judge: $750K bail for 3 ex-officers accused in Floyd death, StarTribune (June 4, 2020); Xiong, Bail set at $1 million for three ex-Minneapolis police officers charged in Floyd case, StarTribune (June 4, 2020); Walsh, Fired Minneapolis police officer Thomas Lane, one of 4 charged in George Floyd’s death, posts bail and leaves jail, StarTribune (June 11, 2020).

[4]  Complaint, State v. Chauvin, #  27-CR-20-12646 (Henn. Cty. Dist. Ct. (June 3, 2020).

[5]  Lopez, George Floyd’s death could have been prevented if we had a police culture of intervention, Wash. Post (May 29, 2020).

[6] Sondel & Knowles, George Floyd died after officers didn’t step in. These police say they did—and paid a price, Wash. Post (June 12, 2020).

[7] Condon & Richmond, Duty to intervene: Floyd cops spoke up but didn’t step in, StarTribune (June 7, 2020).

[8] Navratil & Jany, As Mayor Frey calls for officer’s arrest, violence intensifies in Minneapolis, StarTribune (May 28, 2020); Jany & Navratil, Kroll, Minneapolis union head, blasts city’s riot response in letter to officers, StarTribune (June 1, 2020).

[9] Jany & Sawyer, Seven Minneapolis police officers resign after George Floyd protests, citing lack of support from city leaders, StarTribune (June 13, 2020).

[10] Jany & Evans, After George Floyd’s death, Minneapolis police chief is caught in force’s racial legacy, StarTribune (June 8, 2020); Olson, Minneapolis police officers issue open letter condemning colleague in George Floyd’s death, pledging to work toward trust, StarTribune (June 12, 2020).

 

 

 

Judge Peter Cahill Appointed To Handle Criminal Cases Over Death of George Floyd     

On June 12, Hennepin County District Judge Peter Cahill was appointed to handle the four criminal cases against Minneapolis police officers over the death of George Floyd.[1]

Cahill was appointed to the bench in 2007 by Governor Tim Pawlenty (Rep.) and elected to continue in that position in 2008 and 2014. Known for being decisive and direct, Cahill has handled other significant criminal cases.

In 2019, he presided over the jury trial of Kenneth Lilly for shooting a school bus driver on a snowy winter day. After the jury’s guilty verdict, Cahill sentenced Lilly to seven years in prison, saying the judge accepted that the defendant was “not a monster,” but did not believe the defendant’s assertions that he feared for his life when his car was hit by the slow-moving bus and that he did not know a child was on the bus. Lilly was represented by Thomas Plunkett, who argued for a lower sentence because Lilly had Asperger’s syndrome and suffered from post-traumatic stress disorder from two attempted robberies. Plunkett now represents one of the four Minneapolis policemen (J. Alexander Kueng) in the Floyd case.[2]

Last year Cahill also presided over the case of Thomas Incantalupo, a former ice skating coach with a local skating club. As the trial for nine counts of sexual assaults with a young girl skater was set to commence in June 2019, the defendant accepted a deal for pleading guilty to two counts in exchange for a prison sentence between 12 and 30 years. Thereafter Cahill sentenced him to 24 years in prison after saying that there was “overwhelming evidence” against the defendant, that the defendant’s apologies “ring hollow” and that the defendant’s actions were “not cheating on your wife. This is a crime against a child.” That defendant was represented by attorney Earl Gray, now the attorney for policeman Thomas Lane in the Floyd case.[3]

Plunkett and Gray and the other two attorneys in the George Floyd case now have 10 days from June 12 to move to replace Cahill, but without having any say on who might be the                replacement and without having the right to move to replace the successor judge.

Before becoming a judge, Cahill was an attorney in the Hennepin County Public Defenders Office, 1984-1987, an attorney in private practice in the Twin Cities, 1987-1997 and in the Hennepin County Attorney’s office, 1997-2007, when Amy Klobuchar was the County Attorney (1999-2007).  His J.D. degree was awarded, magna cum laude, in 1984 by the University of Minnesota Law School.

Cahill will replace his fellow judges Jeannice Reding and Paul Scoggin, who presided respectively at the initial hearings in the Chauvin case and the other case involving the other three policemen.[4] Cahill’s appointment was made by Hennepin County District Judge Toddrick Barnette, who will become the first African-American Chief Judge of the court on July 1, 2020.[5]

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[1] Olson, Judge Peter Cahill to oversee cases of four officers charged in Floyd killing. StarTribune (June 12, 2020); The judge assigned in Floyd’s murder trial is a former assistant to Amy Klobuchar, N.Y. Times (June 12, 2020).

[2] Walsh & Jany, Suspected gunman arrested after school bus driver shot in apparent road-rage incident near downtown Minneapolis, StarTribune (Feb. 7, 2019); Charges filed against man who shot bus driver, (Video), StarTribune (Feb. 7, 2019); Walsh, Charges: Man claims self-defense for shooting Minneapolis school bus driver with girl aboard, StarTribune (Feb. 8, 2019); Xiong, Shooter who wounded school bus driver sentenced to 7 years in prison, StarTribune (Sept. 15, 2019).

[3]  Stahl, Ice-skating coach charged with sexually assaulting 14-year-old student, StarTribune (Jan. 11, 2018); Walsh, Twin Cities skating coach admits sexually abusing girl he instructed, StarTribune (June 19, 2019); Xiong, Minneapolis-area figure skating coach gets decades in prison for girl’s sex abuse, StarTribune (Sept. 27, 2019).

[4] Initial Hearings in Criminal Cases for Killing George Floyd, dwkcommentaries.com (June 10, 2020).

[5] Xiong. First chief judge of color elected in Hennepin County, StarTribune (May 5, 2020).

Initial Hearings in Criminal Cases for Killing George Floyd

There are now four criminal cases against former Minneapolis police officers for the killing of George Floyd, all pending in the Hennepin County District Court in Minneapolis, and all four have had their brief initial hearings.

Derek Chauvin [1]

On June 8 Chauvin made his initial appearance by a video feed from a room at the Minnesota State Prison in Oak Heights, Minnesota. The only issue was the amount of his bail,  and the hearing lasted only 15 minutes without any comments by Chauvin or his attorney, Eric Nelson.

The prosecutor, Minnesota Assistant Attorney General Matthew Frank, said that the “severity of the charges” and the strong public opinion against Chauvin made him a more likely flight risk if he were released and, therefore, requested the bail be increased from $1 million to $1.25 million. The attorney for Chauvin, Eric Nelson, did not object, and Hennepin County District Judge Jeannice Reding, increased the bail to $1.25 million without conditions and to $1.0 million with conditions.

Chauvin’s next hearing, when he is expected to enter a plea to the charges, will be on June 29.

Judge Reding was appointed to the bench in January 2006, by Governor Tim Pawlenty (Rep.) and was elected to continue in that position in 2008 and 2014. After graduating cum laude from the University of Minnesota Law School in 1990, she was an attorney in a private Minneapolis law firm for seven years, a Minnesota Administrative Law Judge for two years and a Hennepin County District Magistrate and Referee for eight years. She is a founding member and past treasurer of the Minnesota American Indian Bar Association and served as a guardian ad Litem for children of tribal members in the tribal court of the Shakopee Mdewakanton Sioux Community.

J. Alexander Kueng, Thomas Lane & Tou Thao

Each of these three officers has been charged with aiding and abetting second-degree murder and second-degree manslaughter. At their initial hearing on June 4, Hennepin County District Court Judge Paul Scoggin set bail for each at $1 million without conditions or $750,000 with conditions. [3]

The prosecutor, Minnesota Assistant Attorney General, Matthew Frank, argued for high bail amounts because the charges were “very serious” and due to intense public interest each of these defendants was a flight risk. Each of the attorneys for the defendants objected to such amounts and instead argued for bail between $50,000 and $250,000.

Lane’s attorney, Earl Grey, disputing the complaint’s allegation that Chauvin had pulled Floyd out of one of the squad cars, claimed instead that Floyd had reisited arrest, “asserted himself” and  “flew out” of the squad car. Gray also emphasized that on the day of the Floyd death Lane was only on his fourth day as a full-time officer. Therefore, Gray argued, ““What is my client supposed to do but follow what the [senior] officer says? What was [Lane] supposed to do … go up to Mr. Chauvin and grab him and throw him off?” Instead, Lane thought he was doing what was right because he twice asked Chauvin whether they should roll Floyd over. “The strength of this case,” said Gray, “is extremely weak.” As a result, Gray said he would move to dismiss the complaint for lack of evidence.

More generally, Grey said Lane previously had worked as a juvenile counselor at a few “juvenile places” in the Twin Cities and once received a community service award from Mayor Jacob Frey and Minneapolis Police Chief Arradondo for volunteering with children.

Keung’s attorney, Thomas Plunkett, made a similar argument. He said, “At all times Mr. Keung and Mr. Lane turned their attention to that 19-year veteran. [They] were trying to communicate that this situation needs to change direction.” In addition, Plunkett said that  Keung is a black man who grew up in north Minneapolis with a single mom who adopted four at-risk children from the community and that Keung has always lived within 10 miles of his childhood home, was captain of the soccer team at Patrick Henry High School, where he graduated, coached youth soccer and baseball, and volunteered to build a school in Haiti. “He turned to law enforcement because he wanted to make that community a better place,” his lawyer said.

Thao’s attorney, Robert Paule, had a different tack. He said Thao had given a statement to investigators from the Minnesota Bureau of Criminal Apprehension (BCA) and that he is not a flight risk because he has deep roots in the community. He  is a lifelong resident of the metro area, is married and has children.

Judge Scoggin was appointed to the bench in 2015 by Governor Mark Dayton (DFL) and elected to continue in that office in 2016. His J.D. was awarded cum laude in 1984 by the University of Minnesota Law School, after which he was an Assistant Hennepin County Attorney through 2014 with a stint in 2009-10 as an International Prosecutor with the European Union External Action.

Conclusion

Subsequent posts will examine the  criminal complaints against the four officers and their second hearing scheduled for June 29.

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[1] Stanley & Xiong, $1.25M bail set for Derek Chauvin at his initial appearance Monday in George Floyd’s death, StarTribune (June 8, 2020); Karnowski, Officer charged in Floyd’s death held on $1 million bail, StarTribune (June 8, 2020); Bail Set for Up to $1.25 Million for Officer Charged With Murder in George Floyd Case, N.Y. Times (June 8, 2020).

[2] Xiong, Two ex-Minneapolis police officers charged in George Floyd’s death cast blame on more senior colleague, StarTribune (June 5, 2020); Gordon & Richmond, Duty to intervene: Floyd cops spoke but didn’t step in, StarTribune (June 7, 2020); Karnowski, Officer charged in Floyd death held on $1 million bail, StarTribune (June 8, 2020); Condon & Richmond, Duty to intervene: Floyd cops spoke up but didn’t step in, StarTribune (June 7, 2020).

[3] On June 10, Lane posted cash bail of $750,000 with conditions (surrendering firearms, remaining law-abiding and making all future court appearances) and was released from jail. (Walsh, Fired Minneapolis police officer, Thomas Lane, one of 4 charged in George Floyd’s death, posts bail and leaves jail, StarTribune (June 10, 2020).)