Court Denies Prosecution’s Motion for Temporary Protective Order in George Floyd Criminal Cases    

On October 15, as anticipated, the Media Coalition filed  its opposition to the Prosecution’s Motion for a Temporary Protective Order in the George Floyd Criminal Cases. Later that same day, the Court held a hearing on that motion.

Media Coalition’s Opposition[1]

The Media Coalition’s 12-page brief “respectfully requests that the Court, consistent with its obligations under the common law, its own rules of access, the First Amendment—and, indeed, consistent . . . with its own August 7 Order and August 11 Memorandum Opinion—immediately make the motion papers that Defendant Thomas K. Lane filed on October 12, 2020, including all video exhibits, available to the press and public and that it deny the State’s motion requesting their continued sealing. The Coalition further requests that the Court deny the State’s Motion for Order Temporarily Restricting Public Access to Motions and Exhibits.”

Hearing on the Motion[2]

At a 25-minute hearing, Judge Peter Cahill denied the Prosecution’s motion, but added he would not allow audio, video or photographs to be attached to future filings by the parties. He said the video of George Floyd’s 2019 arrest in Minneapolis “shows what basically everybody already knows: Floyd was arrested on a previous occasion.” Moreover, the Judge noted that this arrest video was potentially helpful to the prosecution and that previously he had banned evidence of Floyd’s involvement in an armed robbery in Texas before he had moved to Minneapolis.

Subsequent Developments [3]

Immediately after the hearing, Jonathan Mason, an activist with 10K Foundation, interrupted attorney Earl Gray’s interview by a reporter, to protest alleged behavior by Chauvin and to accuse the attorney of “protecting a killer.” (This Foundation’s website says, “We are helping communities preserve their freedom, justice and access to the American dream.”)

Later that same afternoon, a group of about eight protesters walked around the skyway level of the Government Center. Some were yelling, “[Expletive] Derek Chauvin.” One of them, Thomas W. Moseley, a 29-year-old from Blaine, yelled. “Kill Derek Chauvin,” and he was handcuffed, searched and taken away after deputies found a black handgun and several knives on him; he was charged with possession of a dangerous weapon, a felony.

Similar heated protests directed at the defendants and their attorneys (and damage of an attorney’s vehicle). occurred after the September 11th hearing. Thereafter these protestors’ actions were cited by one of the defendants as an additional reason (protecting the safety of the defendants and their attorneys) for transferring the case out of Hennepin County. [4]

These incidents provided additional grounds for defendants’ motions to change the venue of the cases—move them from Hennepin County District Court to another state court in a different county.

Therefore, this blog must reiterate that persons who are interested in justice for George Floyd and want the murder and manslaughter trial(s) to be held in Hennepin County, where the killing occurred, must change their tactics. Such protests merely provide evidence to the defendants’ motions to have the cases transferred to another county court in the state.

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[1] Important Prosecution’s Filings in George Floyd Criminal Cases dwkcommentaries.com (Oct. 14, 2020); Media Coalition’s Opposition to State’s Motion to Restrict Access to Defendant Lane’s October 12 Filings and State’s Motion for a “Temporary” Protective Order (Oct. 15, 2020).

[2] Olson, Judge denies prosecution’s request to seal all filings in Floyd case for at least 48 hours, StarTribune (Oct. 15, 2020).

[3] Olson, n.2; Xiong, Defense Attorney in George floyd case renews call to move ex-cops’ trial after armed protester’s arrest, StarTribune (Oct. 16, 2020).

[4] See these posts and comment to dwkcommentaries.com: Results of 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 12, 2020); Additional Developments in George Floyd Criminal Cases (Oct. 4, 2020); Comment: Woman Charged for Damaging Car of Defendant’s Lawyer in George Floyd Criminal Cases (Oct. 13, 2020).

Important Prosecution Filings in George Floyd Criminal Cases

On October 12, the prosecution (the State of Minnesota) filed two important documents in the George Floyd criminal cases against four ex-Minneapolis policemen—Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thao. The first is a motion to have all motions and exhibits in the case remain under seal for two business days “to permit the parties to review . . . [them] before they are made available to the public and, if necessary, to notify the Court within two business days of their intent to oppose public disclosure.” The second is the prosecution’s memorandum in support of other evidence the State intends to offer at trial. Here is a summary of those documents.

Motion To Limit Public Access to Case Materials[1]

The prosecution’s motion to limit public access to case materials was precipitated by an October 12th motion by Earl Gray, the attorney for Defendant Thomas Lane, to include in trial evidence a video from an incident on May 6, 2019, when three other police officers were attempting to have George Floyd show his hands, stop moving around and spit out something he had put in his mouth and when Floyd cried out for his “Mama” and “Don’t shoot me, man.”

Gray in his motion for admission of this evidence apparently argued that the 2019 arrest is relevant to his client’s defense because prosecutors have presented a ‘false narrative’ by portraying Floyd as a ‘law-abiding citizen that was afraid for his life.’ Instead, Gray said, “Floyd’s behavior in the earlier arrest is ‘almost an exact replica’ of how he behaved during his fatal encounter with police a year later outside Cup Foods in south Minneapolis. . . . Floyd cried, mumbled and yelled throughout his interview with the police ,” and Gray argued that‘s how Floyd behaves under ‘the influence of a pill.’”

In response to this motion by Mr. Gray, the prosecution immediately filed the motion to have all motions and exhibits in the case remain under seal for two business days “to permit the parties to review . . . [them] before they are made available to the public and, if necessary, to notify the Court within two business days of their intent to oppose public disclosure.” If any of the parties “oppose public disclosure, the court may then request briefing and set a briefing schedule on a motion opposing public disclosure.”  In support of this motion, the prosecution cited U.S. and Minnesota Supreme Court decisions supporting such a restriction, especially where there is a risk of prejudicial pretrial publicity.

This prosecution motion is opposed by the Media Coalition, which includes the StarTribune.

On October 15, Hennepin County District Court Judge, Peter Cahill, will hold a hearing on the prosecution’s motion

Arguments for Additional Evidence[2]

On October 12th the State filed a 44-page memorandum in support of additional evidence it plans to offer at the criminal trials of Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thau.

After a short Introduction, this memorandum sets forth in 12 pages a detailed “Statement of Facts” with evidentiary citations regarding “The Events of May 25, 2020” (the day that Floyd was killed). This included the following regarding the physical restraint of Floyd on the pavement:

  • At 8:11 p.m., Kueng “and Lane handcuffed Floyd’s arms behind his back. . . From this moment on, and for all of the remaining minutes of his life, Floyd’s hands remained handcuffed.” (P.3.)
  • “At 8:19:14-45 p.m., Chauvin, Kueng, and Lane pinned Floyd to the pavement face-down.” (p. 7.)
  • At 8:23:58—8:24:00 p.m., “Floyd then said what would be his final words: ‘I can’t breathe.’ . . .He soon fell silent and lost consciousness.” (P. 9.)
  • “But even after Floyd went limp, Chauvin continued to restrain Floyd’s neck and restraining Floyd’s left hand. Kueng and Lane continued to restrain Floyd’s back and legs.” (P. 9.)
  • At 8:25:20-31 p.m., the “body camera videos appear to show that Floyd’s shallow breaths stopped.” (P. 10.)
  • At 8:25:40-8:26:00 p.m., the “officers maintained their positions—Chauvin on Floyd’s neck, Kueng on his back, Lane on his legs, and Thao standing guard.” (P. 11)
  • At 8:26:12-18 p.m., after Kueng reported he could not find a Floyd pulse and after Floyd did not respond to Chauvin’s squeezing Floyd’s fingers, “Chauvin continued to kneel on Floyd’s neck.” (P. 11.)
  • At 8:27:36-38 p.m., Chauvin “continued to press his knee into the back of Floyd’s neck.” (P. 12.)
  • At 8:27:43-50 p.m., “while emergency personnel leaned down and attempted to check Floyd’s neck for a pulse, Chauvin did not remove his knee from Floyd’s neck.” (P. 12.)
  • At 8:28:45 p.m., “when the stretcher was ready, Chauvin finally removed his knee from Floyd’s neck.” (P. 12.)
  • “All told, Floyd was pinned to the ground—with Chauvin’s knee pressing into his neck, Kueng and Lane atop his back and legs, and Thao standing watch nearby—for approximately nine minutes.” (Pp. 12-13.)

The bulk of this memorandum was the 28 pages of the “Argument” setting forth why the State’s “evidence of 18 prior incidents involving Defendants Chauvin, Kueng, and Thao” Is admissible. (Pp. 15-43.)

Conclusion

EsarlWe now wait to see what happens at the October 15th hearing and how Judge  Cahill resolves these motions. (By the way, another October 12th filing by the prosecution was a supplemental argument for enhanced sentences of these defendants.[3)

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[1] State’s Motion for Order Temporarily Restricting Public Access to Motions and Exhibits, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Oct. 12, 2000); Olson, Prosecutors seek privacy order to keep details of George Floyd’s 2019 arrest from public view, StarTribune (Oct. 13, 2020)  Gray’s motion is not available on the public website of filings in the Lane case, but the StarTribune obtained a copy since it is a member of the Media Coalition and thus a party in an ongoing dispute over what documents are public in the case. (See Gag Order in George Floyd Murder Cases, dwkcommentaries.com (July 9, 2020); Media Coalition Asks Court To Release BodyCam Footage of George Floyd Killing, dwkcommentaries.com (July 14, 2020).)

[2] State’s Memorandum of Law in Support of Other Evidence, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Oct. 12, 2020); Mannix, Prosecutor: Ex-officers pinned George Floyd for 9 &1/2 minutes, including after they could not find a pulse, StarTribune (Oct. 14, 2020). See also Revised Length of Time for Minneapolis Police Restraint of George Floyd, dwkcommentaries.com (June 18, 2020).

[3] Prosecution’s Supplemental Argument for Enhanced Sentences for Defendants in George Floyd Criminal Cases, dwkcommentaries.com (Oct. 13, 2020).

Judge Cahill’s Memorandum Opinion Explaining His Order for Release of BodyCam Videos  

On August 11, Hennepin County District Court Judge Peter Cahill issued a Memorandum Opinion providing the factual findings and legal conclusions [1] for his August 7th Order granting the motion of the Media Coalition for copies of two of the BWC (body-worn camera) videos of George  Floyd’s arrest and killing.[2]

Preliminarily the Judge said, with citations of decisions by the U.S. and Minnesota Supreme Courts, “Cases that generate intense public interest and media scrutiny highlight the tension between two fundamental rights: the right guaranteed under the federal and state constitutions to criminal defendants to receive a fair trial before an impartial jury, on the one hand, and the right of the public and press to attend public trials, on the other hand.” Moreover, “The open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion,” as was true in this very case. (P. 4.)

“The Court is committed to the management of pretrial proceedings and the eventual trial(s) not only to vindicate the public’s and press’ right of access guaranteed by the First Amendment, the common law, and court rules but also Lane and his fellow co-defendants’ Sixth Amendment rights to a fair trial, and this Court’s and the parties’ interests in seeing that justice be done by a fair and objective jury determining the facts based solely on evidence that will be admitted at trial.” (P.8.)

In so doing, the court has conducted “all hearings in these cases in public . . . [with] overflow courtrooms to facilitate the presence of interested members of the public and press.” The court “has also created special websites for each of these cases in which all publicly-available documents that have been filed . . are made available to the public and press by remote access.” (P. 9.)

The court had issued a Gag Order on July 9th in an attempt “to mitigate what some colloquially characterize as efforts ‘to try the case in the press, to seek to avoid or at least to ameliorate the prospects of unduly tainting the prospective jury pool engendered by the intense media interest and reporting on these cases, and to seek to vindicate the Defendants’ rights and the State’s interest in ensuring justice is done in these cases by a fair and impartial jury deciding whether the Defendants or guilty or not guilty on the State’s charges based solely upon the evidence produced during trial, not based upon media reporting, public speculation, and extraneous information, inadmissible at trial, circulating during the months of pretrial preparation.” (Pp. 10-11.) [3]

The Memorandum Opinion then set forth its legal reasoning for its conclusions: (1) the Media Coalition has standing to intervene (pp. 11-13); (2) the media and the public have a right under the common law and court rules to obtain copies of the BWC videos, under cited U.S. and Minnesota Supreme Court decisions and Minnesota Rules of Criminal Procedure and Rules of Public Access to Records of the Judicial Branch. (Pp. 13-19.)

Important for the court, “based on the representations [of all counsel] were the following ” all council expect the [two BWC videos in question] . . . will be admitted into evidence at the trial, that allowing members of the public and the press to obtain copies of those BWC videos does not, at this stage of the proceedings, present a substantial likelihood of interfering with the fair and impartial administration of justice and the defendants; rights to a fair trial.”

The court did not find it necessary to decide whether the media had a first amendment right to obtain copies of the videos. (Pp. 19-22.)

In a footnote, the court noted that “the fractious, highly partisan, and segmented niches served by the modern-day media and journalists . . . should resoundingly dispel the notion that journalists, as a profession, can be depended on ‘to produce complete, accurate accounts of what transpires.” (Fn. 8 at 7-8.)

Conclusion

 This was a well-reasoned and written opinion.

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[1] State v. Lane, Opinion on Order Granting Motion of Media Coalition To Obtain Copies of Publicly-Filed Body-Worn Camera Video Evidence, (Court File No. 27-CR-20-12951, Hennepin County District Court, Aug. 11, 2020); Xiong, Judge says he withheld broad distribution of bodycam videos in George Floyd killing to preserve fair trial, StarTribune (Aug. 12, 2020).

[2] State v. Lane, Order Granting Motion of Media Coalition To Obtain Copies of Publicly-Filed, Body-Worn Camera Video Evidence, (Court File No. 27-CR-20-1295, Hennepin County District Court, Aug. 7, 2020); Court Orders Public Release of Bodycam Footage of George Floyd Arrest and Killing, dwkcommentaries.net (dwkcommentaries.net (Aug. 8. 2020).

[3] See Gag Order in George Floyd Murder Cases, dwkcommentaries.com (July 9, 2020).

Court Orders Public Release of Bodycam Footage of George Floyd Arrest and Killing   

On August 7, Hennepin County District Court Judge Peter Cahill ordered the public release of the bodycam footages of the arrest and killing of George Floyd that were made by criminal defendants and former police officers Thomas Lane and J. Alexander Kueng.[1]

The Judge’s order said, “Members of the Media Coalition, as well as other media and members of the public, may obtain copies” of the footage. The order, however, did not elaborate on the rationale for his ruling, nor on how or when the footage would be released.

On July 13, the so called Media Coalition of local and national media companies had filed with the court a motion for the immediate release of this footage. The Coalition argued that the court’s allowing these videos to be viewed only at the courthouse by appointment violated state laws, court rules and the First Amendment of the U.S. Constitution.[2]

The Media Coalition consists of the StarTribune; American Public Media, which owns Minnesota Public Radio; the Associated Press; CBS Broadcasting Inc.; Dow Jones & Co., publisher of the Wall Street Journal; Hubbard Broadcasting; Hubbard Broadcasting, which owns a Minnesota television broadcaster (KSTP-TV); and the New York Times Co., among others.

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[1] Simons, Judge orders release of Minneapolis police body camera video from the night George Floyd was killed, StarTribune (Aug. 7, 2020); Judge orders release of body camera video showing Floyd killing, MPRnews (Aug. 7, 2020).

[2] Media Coalition Asks Court To Release BodyCam Footage of George Floyd Killing, dwkcommentaries.com (July 14, 2020).

 

Court Hearing in Criminal Cases Against the Four Ex-Policemen in George Floyd Killing      

On July 21 Hennepin County District Court Judge Peter Cahill held a hearing to hear arguments on several pending motions in the criminal cases against the four ex-police officers involved in the May 25th killing of George Floyd.[1]

First, was the motion by the four ex-policemen to hold Attorney-General Ellison in contempt of court for making a public statement about his hiring, pro bono, four additional attorneys for the prosecution. Before the hearing, an Assistant Attorney General said this motion was a ploy to smear the prosecution, and during the hearing the Judge said the statement was innocuous and did not violate the gag order.

In any event, during the hearing, the judge vacated the gag order. The Judge said that order could have been more narrowly drawn as it “didn’t work” and  “may have exacerbated the issue” by causing parties to “tip toe” around in their public statements while leading the news media to rely on anonymous sourcing.

Second, the Judge heard arguments on the motion by a media coalition to release the video footage of two body camera footage of the police’s restraint of Mr. Floyd, but did not rule on that motion.

During the hearing, the attorney for defendant Thomas Lane, said that Floyd had “swallowed drugs” as Lane approached the car and that the bodycam video actually showed Floyd “stuffing counterfeit bills down his [car] seat before he showed his hands.”

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[1] Montemayor, Hennepin County judge drops gag order in case against four ex-cops charged in Killing of George Floyd, StarTribune (July 21, 2020); Ibrahim, Hennepin County judge lifts gag order in George Floyd criminal case, Twin Cities Pioneer Press (July 21, 2020); Lambert, Judge lifts gag order in criminal case against four former Minneapolis police officers, MINNPOST (July 22, 2020).

 

 

Media Coalition Asks Court To Release BodyCam Footage of George Floyd Killing

On July 13, the Media Coalition of local and national media companies filed a motion for the immediate release of the bodycam footage of the killing of George Floyd on May 25th.[1]

The motion papers alleged that the court’s insistence that the videos be viewed by appointment only in the Hennepin County Government Center violates state laws governing public records, court rules and the First Amendment of the U.S. Constitution. Therefore, these media companies requested the Court “immediately make the BWC [body-worn camera] footage available for copying by the press and public so that it may be widely viewed not just by those who have the time and wherewithal to visit the courthouse during a global pandemic but by all members of the public concerned about the administration of justice in one of the most important, and most-watched cases, this State — perhaps this country — has ever seen.” [2]

The attorneys for the Coalition also said that “releasing the transcripts without the accompanying footage is the sort of piecemeal disclosure that threatens not only to mislead the public, including potential jurors, but also to destroy the public’s trust in the judicial system.” Moreover, they argued that a written transcript only captures what someone said, not actions. “The transcripts don’t capture non-verbal noises, tone of voice or other elements. In addition, the transcripts of Lane and Keung’s body camera videos differ during crucial moments of the encounter. Allowing journalists to copy the footage, watch it multiple times, transcribe it and compare it to the transcripts and to time stamps from the bystander video will help reporters piece together a more complete story.” [3]

In addition, the motion papers argued, “There is no reason to believe that making the BWC footage itself easily accessible to the press and public would materially impact the fairness of trial .… As days of unrest in the Twin Cities showed, it is vitally important that the public have full confidence in the process and outcome of this criminal prosecution.”

The Media Coalition consists of the StarTribune; American Public Media, which owns Minnesota Public Radio; the Associated Press; CBS Broadcasting Inc.; Dow Jones & Co., publisher of the Wall Street Journal; Hubbard Broadcasting, which owns KSTP-TV; and the New York Times Co., among others.

The Coalition is represented by  attorneys Leita Walker, a partner in the Media and Entertainment Law Group in the Minneapolis office of the Ballard Spahr LLP law firm, and Emmy Parsons, an associate in that Group.

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[1] Xiong, Media coalition calls for immediate release of body camera footage in George Floyd killing, StarTribune (July 13, 2020); Assoc. Press, Media: Body Camera Video in Floyd Case Should Be Made Public, N.Y. Times (July 13, 2020).

[2] See Gag Order in George Floyd Murder Cases, dwkcommentaries.com  (July 9, 2020).

[3] Quotations from the transcripts of the bodycam footage were included in Ex-Officer Lane Moves for Dismissal of Criminal charges in George Floyd Killing, dwkcommentaries.com (July 9, 2020).