Minnesota Attorney General Keith Ellison

Tou Thao, ex-MPD Officer, Convicted for Aiding and Abetting Second-Degree Manslaughter of George Floyd

On May 1, 2023, Hennepin County District Court Judge Peter Cahill, after a trial on stipulated evidence, issued the Verdict that Tou Thao, a former MPD officer, “committed and is GUILTY of the offense of aiding and abetting second-degree manslaughter in violation of Minn. Stat. [section] 609.05, Subd. 1, 609.205(1) in connection with the death of George Floyd on May 25, 2020 . . . and is hereby convicted of that offense.” [1]

In its 177-page Verdict, Findings of Fact, Conclusions of Law, and Memorandum Opinion in Stipulated Evidence Trial, the Court’s summary of the key evidence on this charge stated the following:

“Thao actively encouraged his three colleagues’ [Derek Chauvin, J. Alexander Kueng and Thomas Lane] dangerous prone restraint of Floyd while holding back a crowd of concerned bystanders begging the officers to render medical aid. Thao knew, as the minutes passed and the restraint continue unimpeded, that Floyd had stopped talking and fallen silent, had stopped moving altogether, and had become totally unresponsive. In fact, by about six minutes into the restraint, Floyd stopped breathing, lost consciousness, and became pulseless.”
“Thao, Chauvin’s partner on that night, was an experienced Minneapolis police officer with almost a decade’s experience. He knew that the officers’ prone restraint could kill. Like the other officers, Thao had been trained specifically to turn an individual onto his side to avoid positional asphyxia, the very thing that several eminent medical specialists who testified at trial concluded caused Floyd’s death. Like the bystanders, Thao could see Floyd’s life slowly ebbing away as the restraint continued. Yet Thao made a conscious decision to actively participate in Floyd’s death: he held back the concerned bystanders and even prevented an off-duty Minneapolis firefighter from rendering the medical aid Floyd so desperately needed.”
“Thao also directly insisted upon continuing the restraint that took Floyd’s death that night. Soon after Floyd had been subdued prone on the street, Thao retrieved a device called a ‘hobble’ from Lane’s and Kueng’s squad. If properly employed, that hobble would have saved Floyd’s life. But Thao encouraged the other officers not to use the hobble and instead to ‘hold on’ and continue the physical restraint by which his three fellow officers were bearing down on Floyd, forcing him into the unyielding concrete of the street, drastically inhibiting his ability to breathe effectively. Thao’s stated reason? ‘If we hobble him, the sergeant is going to have to come out’ to complete the paper work for a ‘use of force review’ mandated by MPD policy whenever the hobble is employed. The short of it: Tou Thao did not want to follow the proper protocol and the work it would entail. George Floyd died as a result.”

Parties’ Attorneys’ Comments on this Verdict[2]

After this Verdict was filed, Minnesota Attorney General Keith Ellison stated, “The conviction of Tou Thao is historic and the right outcome. It brings one more measure of accountability in the tragic death of George Floyd. Accountability is not justice, but it is a step on the road to justice.”

Thao’s attorney, Robert Paule, said he plans to appeal the verdict. “I respectfully disagree with the decision, and I think [the Judge] expands the doctrine of aiding and abetting beyond what we’ve seen [defined] at the appellate level.” His client was “disappointed. He really is.”

Conclusion

Now all four of the ex-MPD officers involved in the killing of George Floyd have been found guilty of state and federal criminal charges for same.

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[1] Verdict, Findings of Fact, Conclusions of Law, and Memorandum Opinion in Stipulated Evidence Trial, State v. Thao, Mn. Dist. Ct., Ct. File No. 27-CR-20-12949 (May 1, 2023); Walsh & Hyatt, Tou Thao, ex-MPD officer charged in George Floyd’s killing, found guilty, StarTribune (May 2, 2023); Karnowski (AP). Ex-officer Thao convicted of aiding George Floyd’s killing, AP News (May 2, 2023). Most of the prior developments in the state and federal criminal trials of the four ex-officers are covered in this blog’s previous posts. (See List of Posts to dwkcommentaries—Topical: George Floyd Killing.)

[2] Minnesota Attorney General Ellison. Tou Thao convicted of 2^nd-degree manslaughter in murder of George Floyd (May 1, 2023). This document included a similar statement by Hennepin County Attorney Mary Moriarty.

Kueng and Thao Reject Proposed Deals for State Guilty Pleas for George Floyd Killing

On August 15, 2022, in Hennepin County District Court Minnesota Assistant Attorney General Matthew Frank offered the following plea deal to J. Alexander Kueng and Tou Thao: (a) drop their convictions for aiding and abetting the second-degree murder of George Floyd in exchange for their pleading guilty to the lesser charge of aiding and abetting manslaughter and (b) recommending a three-year prison sentence to be served concurrently with their federal sentences of three years for Kueng and 3 ½ years for Thao.[1]

With Judge Peter Cahill presiding, both men rejected the proposed plea deal with Thao saying, “It would be a lie and a sin for me to accept a plea deal.”

Prosecutor Frank added that the proposed plea deal thus had expired, and the two men still faced their scheduled October 24^th trial in this court.

Before the public hearing, Judge Cahill rejected a request from both defense attorneys to hold today’s proceedings in private chambers to avoid media attention. Thao’s attorney said allowing it to proceed in open court made it purely for “public consumption” and would impede a fair trial, while Kueng’s attorney said prosecutors have unfairly taken advantage of the media spectacle around the high-profile cases against the officers. Judge Cahill, however, said he didn’t see how their clients declining to plead guilty would harm their credibility with a jury. The Judge also denied Thao’s attorney’s request to gag prosecutors from talking to reporters.

In a subsequent public statement, Attorney General Keith Ellison said it’s “a standard best practice” to make a record in court when prosecutors offer a plea agreement to ensure the defendant is making a knowing and free decision. The defendants have a right to decline the offer and proceed to trial. The State is ready for trial.”

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[1] Mannix, Tou Thao, J. Alexander Kueng reject plea deal offered by state prosecutors in George Floyd killing, StarTribune (Aug. 15, 2022); Karnowski, Thao, Kueng say they rejected plea deal in Floyd killing, Assoc. Press (Aug. 15, 2022).

Kueng and State Agree on Guilty Plea While Thao Agrees to Judge Cahill’s Deciding His Case on Existing Record

On May 18, 2022, former Minneapolis Police Officer Thomas Lane in state court pleaded guilty to the charge of aiding and abetting manslaughter of George Floyd on May 25, 2020. [1]

Before Hennepin County District Court Judge Peter Cahill, this guilty plea was part of a plea agreement which dismissed the separate charge of aiding and abetting second-degree murder and for a sentence of three years imprisonment in federal prison to be served concurrently with his upcoming sentence for his February 2022 conviction in federal court for violating Floyd’s civil rights. The state court sentencing is scheduled for September 21.[2]

Minnesota Attorney General Keith Ellison issued a statement saying, “Today my thoughts are once again with the victims, George Floyd and his family. Nothing will bring Floyd back. He should still be with us today.” Ellison then said, “I am pleased Thomas Lane has accepted responsibility for his role in Floyd’s death. His acknowledgment he did something wrong is an important step toward healing the wounds of the Floyd family, our community, and the nation. While accountability is not justice, this is a significant moment in this case and a necessary resolution on our continued journey to justice.” Lane’s attorney, Earl Gray, however, declined to comment on this development.

Two other ex-MPD officers, Tou Thao and J. Alexander Kueng still face state charges of aiding and abetting second-degree murder and manslaughter in Floyd’s death. That trial is scheduled to commence on June 13. [3]

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[1] Olson, Ex-MPD officer Thomas Lane pleads guilty to manslaughter charge for role in George Floyd’s murder, StarTribune (May 18, 2022); Forlitti & Karnowski (AP), Ex-cop pleads guilty to manslaughter in George Floyd killing, Wash. Post (May 18, 2022); Ex-Minneapolis police officer pleads guilty to manslaughter in George Floyd’s death, NBC News (May 18, 2022); Minnesota Attorney General, ‘Pleased Thomas Lane has accepted responsibility ‘: Attorney general Ellison statement on guilty plea in death of George Floyd (May 18, 2022). Apparently in April, Lane, Kueng and Thao rejected a plea deal (details not publicly available) offered by the Minnesota Attorney General’s Office. (Jimenez, 3 former police officers charged in George Floyd’s death reject plea deal, CNN.com (April 13, 2022).

[2] Federal Criminal trial for Killing George Floyd: Jury Deliberations and Verdict, dwkcommentareis.com (Feb. 25, 2022).

[3] Hennepin County District Court Enters Order Regarding Trial of Three Former Minneapolis Policemen Over Killing of George Floyd, dwkcommentaries.com (April 30, 2022).

Federal Criminal Trial for Killing George Floyd: Jury Deliberations and Verdict

On February 23, U.S. District Court Judge Paul Magnuson gave the Court’s instructions to the jury, and the jury engaged in their deliberations for the rest of the day and most of the next day. On the afternoon of February 24, the jury rendered its verdict. [1]

Jury Instructions

The Judge told the jurors they must view the evidence in light of what a “reasonable officer at the scene” would have done “without the benefit of 20-20 hindsight” and then “determine whether the decision to use force on Floyd was reasonable under the circumstances that were tense and rapidly evolving.”

Moreover, “it violates the Constitution for a police officer to fail to intervene if he had knowledge of the force and an ability to do so.”

On each count, if the jurors find an officer guilty, they must determine whether the officer’s actions caused Floyd’s death. (If the jury so finds, longer sentences would be permissible.)

Jury Verdict [2]

On the afternoon of February 24, after total deliberations of 13 hours over two days, the jury rendered its verdict that all three defendants were guilty of all charges.

Reactions to the Verdict [3]

Afterwards, Assistant U.S. Attorney LeeAnn Bell said, “[A]s one of the brave bystanders said, ‘George Floyd was a human being.’ He deserved to be treated as such.”

George Floyd’s brother, Philonise Floyd, said, “This is something we want everybody to remember: If you kill somebody, you’re going to get time.”

Minnesota Attorney General Keith Ellison stated, “Once again, the principle that no one is above the law and no one is beneath it has been upheld. The verdicts vindicate the principle that officers have a duty and a responsibility to intervene and recognize when a fellow officer is using excessive force.”

Christy E. Lopez, a professor at Georgetown University Law Center and an expert on police training, commented that this verdict “could significantly change law enforcement culture, compelling agencies to make sure that officers are properly trained and are upholding their duties. It shifts the entire narrative from misconduct being about just acts of commission to misconduct also being about acts of omission.” [4]

Other experts noted that “this case focused on a more widespread problem than a single officer’s act of violence: the tendency of officers to stand by when they witness a fellow officer committing a crime.”

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[1] Olson & Mannix, Jury wraps first day of deliberating federal civil rights case against 3 ex-Minneapolis officers in George Floyd death, StarTribune (Feb. 23, 2022); Bogel-Burroughs, Jurors to Weigh Fate of Officers Who Restrained George Floyd as He Died, N.Y. Times (Feb. 22, 2022).

[2]Olson & Mannix, Ex-Minneapolis officers guilty on all civil rights charges related to George Floyd’s death, StarTribune (Feb. 24, 2022); Former Minneapolis Police Officers Found Guilty of Violating George Floyd’s Civil Rights, W.S.J. (Feb. 24, 2022); Former Minneapolis officers found guilty of violating George Floyd’s civil rights, Wash. Post (Feb. 24, 2022).

[3] Walsh, Reaction to guilty verdicts ranges from proper police accountability to worries of chilling effect on cops, StarTribune (Feb. 24, 2022); Arango, Bogel-Burroughs & Senter, 3 Former Officers Are Convicted of Violating George Floyd’s Civil Rights, N.Y. Times (Feb. 24, 2022).

[4] See Importance of Pending Federal Criminal Case Over Killing of George Floyd, dwkcommentaries.com (Jan. 24, 2022)(discussion of Professor Lopez’ work on police training), https://dwkcommentaries.com/2022/01/24/importance-of-pending-federal-criminal-case-over-killing-of-george-floyd/

Derek Chauvin Trial: State Requests Modification of Court’s Sentencing Opinion

On July 7, 2021, the State of Minnesota made an unusual request of Hennepin County District Court Judge Peter Cahill: revise its June 25, 2021, Sentencing Memorandum Opinion, but not its 22.5 year sentencing order. The requested change was to include the presence of children at the scene of George Floyd’s murder as an aggravating factor for sentencing.

Rationale for the Request[1]

The State asserted the following two reasons for this request.

First, the Court said, contrary to laws and common sense,” that the children’s presence should not be an aggravating factor because they “were not forcibly held at the scene or otherwise prevented from leaving.” However, according to the Attorney General, “The Minnesota Supreme Court has clearly stated that an aggravating factor applies when children witness criminal activity.[Emphasis in Ellison letter.]Children lack the adult capacity for decision-making, including the ability to maturely ‘walk away.’ Moreover, the law does not place the burden on a child to choose between staying—whether to stand witness or in an attempt to aid a victim—or leaving the scene of a crime. For good reason: The responsibility of shielding a child from witnessing a crime should not fall on the child. In other words, a child is akin to a victim when she perceives a horrific event—such as murder—without anything more.”

Moreover, the “State is deeply worried about the message sent by suggesting that instead of attempting to intervene in order to stop a crime—which children did in this case—children should simply walk away and ignore their moral compass. Children should never be put in this position.”

Second, “the State vehemently disagrees with the Court’s factual assertion that the demeanor the children exhibited in the video of Mr. Floyd’s death indicates that the children were not traumatized. The children’s emotional testimony at trial—including that one of them stays awake at night and another cannot return to Cup Foods—belies that conclusion.”

Third, “the best social science research also supports modifying the opinion’s reliance on the children’s demeanor. . .. [It] ignored the facts that the children courageously confronted Mr. Chauvin and his codefendants –by pleading repeatedly for Mr. Chauvin to remove his knee from Mr. Floyd’s neck so that he could breathe, and by begging Mr. Chauvin and his codefendants to check Mr. Floyd’s pulse [and instead] relied on its observation that the children smiled or giggled at various points during the incident. But that observation is completely immaterial: Children process traumatic experiences in ways that may seem unusual to the untrained eye. Moreover, as social science research demonstrates, for humans of all ages, giggling or smiling can actually be normal responses to stressful experiences. Additionally, and particularly relevant here, research demonstrates that ‘adults view Black girls as less innocent and more adult-like that their white peers.’ This phenomenon of ‘adultification’ is unfortunately common in American society, including the criminal justice system, and has led even careful observers to discount a young Black girl’s trauma.”

Support for these references to social science research was provided in the accompanying Declaration (under Penalty of Perjury) of Sarah Yvonne Vinson, an eminently qualified Triple Board-Certified Child & Adolescent, Adult and Forensic Psychiatrist.[2]

Finally while noting the State’s “utmost respect for the Court, including tis tremendous efforts to reduce implicit bias in this trial,,” the State said the Court’s “discounting the trauma of the children who testified at trial—in an authoritative judicial opinion, no less—will only exacerbate the trauma they have suffered. The Court should correct the public record to avoid that result.”

Conclusion

This blog previously stated its disagreement with the Court’s rejection of the presence of children as an aggravating factor for sentencing.[3]

The Court also failed to acknowledge the judgment and courage of one of the children—17 year-old- Darnella Frazier—in deciding that day to use her cell phone to make a 10-plus minute video recording of the restraint and murder of Mr. Floyd.[4]

Finally, although not relevant to the Court’s opinion, Frazier’s traumatization unfortunately was further exasperated on July 6, 2021, when her innocent uncle (Leneal Lamont Frazier, age 40,) was killed in a car crash involving a Minneapolis police vehicle that was pursuing another vehicle containing a robbery suspect. Darnella said on FACEBOOK, “MINNEAPOLIS police killed my uncle . . . Another Black man lost his life in the hands of the police. Minneapolis police [have] cost my whole family a big loss. . . today has been a day full of heartbreak and sadness.” Later she added the following clarification to that post: “”I never said the police killed him on purpose. I said it was the police’s fault … The police car is the car that killed my uncle.” She wrote that the police made a bad decision by conducting a high-speed chase through a residential neighborhood, and that bad decision “cost my uncle his life.”[5]

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[1] Letter, Minnesota Attorney General Keith Ellison to Judge Peter Cahill, State v. Chauvin, Court File No.: 27-CR-20-12646 (July 7, 2021); Xiong, Attorney General challenges judge’s characterization of girls’ reactions at Floyd murder scene, StarTribune (July 8, 2021).

[2] Declaration of Sarah Yvonne Vinson, State v. Chauvin, Court File No.: 27-CR-20-12646 (July 7, 2021).

Click to access MCRO_27-CR-20-12646_Other-Document_2021-07-07_20210708080542.pdf

[3] See these posts to dwekcommetaries.com: Derek Chauvin Trial: Week Four (April 2, 2021); Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment, (June 28, 2021).

[4] See these posts to dwkcommentaries.com: Witnessing (April 25, 2021); Darnella Frazier’s Continued Witnessing (May 26, 2021); More Honors for Darnella Frazier (June 12, 2021).

[5] Hyatt & Miller, Mourners block street where Minneapolis police car crashed into car during pursuit, killing innocent driver, StarTribune (July 8, 2021); Bela, Darnella Frazier says her uncle was killed by a police car that was chasing a robbery suspect, Wash. Post (July 7, 2021).

Developments in State’s Prosecution of Ex-Officers for Aiding and abetting the Killing of George Floyd

As noted in a prior post, on May 12, attorneys for Tou Thao filed a motion for sanctions for alleged prosecutorial misconduct, and on May 20, the State submitted a blistering opposition to that motion. Also on May 20, the Minnesota Court of Appeals heard arguments in the State’s appeal of the trial court’s denial of its motion to add a charge of aiding and abetting third-degree murder against the other three ex-officers.

Thao’s Motion [1]

The basis for this motion was the State’s allegedly (a) having Dr. Roger Mitchell, a former Chief Medical Examiner for Washington, D.C., pressure Dr. Andrew Baker, the Hennepin County Medical Examiner, to change his preliminary findings of “no physical findings [supporting] a diagnosis of traumatic asphyxia or strangulation” to the final findings of “neck compression;” and (b) after Chauvin’s chief medical expert (Dr. Fowler) testified that in his opinion the cause of death was undetermined, Dr. Mitchell wrote to Maryland officials to investigate Dr. Fowler’s qualifications and such an investigation was commenced by the Maryland Attorney General.

On that basis the motion requested an order (a) dismissing the criminal charges against Thao; (b) barring seven attorneys (Including Attorney General Ellison and Neal Katyal) from participating in any trial against Thao; (c) asserting complaints about these attorneys to their professional responsibility authorities; and (d) requiring the State to report Dr. Mitchell to the appropriate medical boards.

On the same day of the motion, the State submitted a short letter to the Court from Minnesota Assistant Attorney General Matthew Frank saying that this motion asserted, “Bizarre allegations . . . [that] are false and wrong.”

A more detailed and fierce response from the State was filed on May 20. It asserted that this “motion is another bad-faith attempt by Defendant Thao to debase the State, disqualify members of the prosecution team, and divert attention from his role in the death of George Floyd on May 25, 2020. . . .These preposterous accusations are simply false, and . . .Thao does not even offer a shred of evidence to support this baseless conspiracy theory. If anything, the very facts . . . Thao offers [the sworn testimony of Dr. Baker]disprove the accusations he makes.”

“The State also cannot, and did not, control or influence the response to Dr. Fowler’s public testimony from the medical community at large . . . . [Over 400] medical professionals found Dr. Fowler’s testimony to be so contrary to accepted medical standards that they publicly expressed concern about the credibility of Dr. Fowler’s work. . . .[This] is evidence against, not for, the wild accusations of defense counsel.”

Thao’s attorney “has launched a frivolous motion practice campaign to unfairly prejudice the prosecution in the public domain, replete with gratuitous and unfounded personal attacks on the prosecution. To make false accusations of coercion against the State n an attempt to tarnish professional reputation, taint the jury pool, and advance Defendant’s interest in the public eye is beyond the pale.”

Therefore, argued the State, “the court should summarily deny ]this motion} . . .and remind defense counsel of his obligation to refrain from frivolous motion practice.”

Appellate Argument Over Aiding and Abetting Third-Degree Murder [2]

On May 20, the Minnesota Court of Appeals heard arguments in a pending appeal by the State over whether or not the three co-defendants (Thomas Lane, J. Alexander Kueng and Tou Thao) could be charged with aiding and abetting third-degree murder of George Floyd.

Neal Katyal for the State argued that this appellate court already had decided that a charge of third-degree murder was viable against Derek Chauvin, for which he was convicted in April, and that appellate decision “should settle the [issue for the other three defendants].

For the three co-defendants attorney Deborah Ellis argued that it was legally impossible for them to be charged with aiding and abetting third-degree murder because that is an unintentional act and relies on a defendant’s reckless state of mine, but aiding and abetting must be intentional. This, she argued, required the principal actor and the accomplice to be of the same mindset.

One of the three appellate judges, Judge Renee Worke, said this was a “novel” argument while Attorney Katyal said this argument was just wrong. A defendant and aids a crime of recklessness if he intentionally assist in the reckless act, knowing it is reckless. Moreover, the State could just charge the three co-defendants as principal actors.

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[1] See Developments in State Criminal Cases for George Floyd Killing, dwkcommentaries.com (May 13, 2021); State’s Response to Defendant Thao’s Motion for Sanctions Regarding Alleged Witness Coercion, State v. Thao, Hennepin County District Court, Court File No. 27-CR-20-12949 (May 20, 2021); Olson, Prosecutors deny defense claim that medical examiner’s opinion in George Floyd’s death was coerced, StarTribune (May 20, 2021).

[2] Forlit (AP), Appeals court hears case of 3 ex-cops charged in Floyd death, StarTribune (May 20, 2021).

Developments in State Criminal Cases for George Floyd Killing

There have been four recent developments in the state criminal cases over the killing of George Floyd: (a) the state trial court’s delaying the criminal trial of the other three defendants (Thomas Lane, J. Alexander Kueng and Tou Thao); (b) conducting a hearing on Lane’s motion for discovery of certain use-of-force reports by the Minneapolis Police Department; (c) conducting a hearing on motions for sanctions for alleged leak of alleged Chauvin offer to plead guilty; and (d) Thao’s motion for sanctions for alleged illegal pressure on Hennepin County Medical Examiner.

Delay of Trial [1]

At the May 13 pretrial hearing in the three cases, Judge Peter Cahill announced that the trial would be delayed from August 25, 2021 to March 7, 2022. The Judge gave three reasons for this postponement: (a) provide time for the Judge to deal with pending issues in the cases; (b) provide time for the recently filed federal criminal case against all four ex-officers to proceed since it carries higher potential penalties; [2] and (c) provide time for the publicity about the trial and conviction of Derek Chauvin to diminish.

The three defendants favored the postponement. The State did not .

Nekima Levy Armstrong, a lawyer and prominent civil rights activist in Minneapolis, did not approve of this postponement. She said, “I think we they should have just moved forward. I don’t think it helps our community in a positive way to have to wait about another year.”

Lane’s Motion for Discovery [3]

Previously Lane had requested the State to disclose all use-of-force reports for the last 30 years in which a Minneapolis police officer intervened verbally or physically against another officer’s use of force and the State objected. Lane’s attorney believes there are no such reports and thus discredit the aiding and abetting charges against Lane (and the other two ex-officers )for not intervening to stop Chauvin’s restraint of George Floyd.

Matthew Frank for the State argued that the request was overly broad and should be denied. ts brief stated, that Lane had “not established how the intentions and actions of individual police officers in past years in other incidents would be admissible to impeach testimony about the objectively reasonable officer standard. His failure to address the factual or legal standards necessary to this motion highlight that this is not a serious discovery motion, but simply an attempt to usurp the Court’s time and resources so counsel for Defendant Lane can obtain a public forum to argue his theory of the case. His motion should be summarily denied.”

The Judge said he would take the motion under advisement and later issue an order on the motion.

Three Co-Defendants Motion for Sanctions [4]

The three co-defendants (Lane, Kueng and Thao) have alleged that the prosecution leaked to the New York Times an alleged offer by Chauvin to plead guilty to third -degree murder only three days after the killing of Mr. Floyd.[5]

At the May 13^th hearing, this subject was raised when the three co-defendants asked for the prosecutors to testify under oath or submit affidavits that they did not leak this information, and Judge Cahill revealed that shortly after publication of the Times article he had asked the prosecutors to do just that, but only one such affidavit was provided (by Matthew Frank) while Attorney General Ellison submitted a letter (not under oath) that the prosecution team was not the source.

Judge Cahill tentatively scheduled an August hearing on this matter, and one of the co-defendants’ attorneys said he would subpoena prosecutors who had not submitted affidavits as well as the New York Times reporter for the article (Tim Arango) even though Judge Cahill expressed concern about a subpoena to the journalist in light of his First Amendment protections. (Indeed, the New York Times subsequently stated that it “will vigorously defend against any effort to target our reporters and their sources.”

Thao’s Motion for Sanctions [6]

On March 12 attorneys for Tou Thao filed a motion for sanctions for alleged prosecutorial misconduct in allegedly (a) having Dr. Roger Mitchell, a former Chief Medical Examiner for Washington, D.C., pressure Dr. Andrew Baker, the Hennepin County Medical Examiner, to change his preliminary findings of “no physical findings [supporting] a diagnosis of traumatic asphyxia or strangulation” to the final findings of “neck compression;” and (b) after Chauvin’s chief medical expert (Dr. Fowler) testified that in his opinion the cause of death was undetermined, Dr. Mitchell wrote to Maryland officials to investigate Dr. Fowler’s qualifications and such an investigation was commenced by the Maryland Attorney General.

The motion then requested an order (a) dismissing the criminal charges against Thao; (b) barring seven attorneys (Including Attorney General Ellison and Neal Katyal) from participating in any trial against Thao; (c) asserting complaints about these attorneys to their professional responsibility authorities; and (d) requiring the State to report Dr. Mitchell to the appropriate medical boards.

The same day (May 12) Minnesota Assistant Attorney General Matthew Frank sent a letter to the Judge, saying that this motion asserted, “Bizarre allegations . . . [that] are false and wrong” and that the State requested one week to file a response to the motion.

Conclusion

The issues keep coming.

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[1] Xiong, State trial postponed to March 2022 for ex-officers charged with aiding and abetting murder in George Floyd death, StarTribune (May 13, 2021); Furber, Judge Delays Trial for Other Officers Charged in Killing of George Floyd, N.Y. Times (May 13, 2021); Bailey, Trial for 3 former officers charged in George Floyd’s murder delayed until March, Wash. Post (May 13, 2021); Karnowski & Forliti (AP), Trial for 3 ex-cops charged in Floyd’s death pushed to March, Wash. Post (May 13, 2021); Winter, Judge Delays trial in George Floyd Case, W.S.J. (May 13, 2021).

[2] See Federal Criminal Charges Against Ex-Minneapolis Policemen Over George Floyd Killing, dwkcommentaries.com (May 7, 2021).

[3] See n.1 supra. See also State’s Response to Defendant Lane’s February 10, 2021 Discovery Motion, State v. Lane, Hennepin County District Court, Case No. 27-CR-20-12951 (May 11, 2021).

[4] See n. 1 supra.

[5] See n. 1 supra; Did Derek Chauvin Agree to Plead Guilty to Third-Degree Murder for Killing George Floyd, dwkcommentaries.com (Feb. 11, 2021).

[6] See n. 1 supra. See also Motion for Sanctions for Prosecutorial Misconduct Stemming from Witness Coercion, State v. Thao, Court File No. 27-CR-20-12949, Hennepin County District Court May 12, 2021), https://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12949-TT/NOMM05122021.pdf; Letter, Matthew Frank (Assistant Attorney General) to Judge Cahill, State v. Thao, Court File No. 27-CR-20-12949, Hennepin County District Court May 12, 2021).. https://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12949-TT/Correspondence05122021.pdf.

Federal Criminal Charges Against Ex-Minneapolis Policemen Over George Floyd Killing

On May 7, the federal court in Minneapolis unsealed a federal grand jury indictment of four ex-Minneapolis policeman—Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thau—for allegedly using the “color of the law” to deprive George Floyd of his constitutional rights to be “free from the use of unreasonable force” when Chauvin held Floyd down by the neck for more than nine minutes while the others did nothing to stop Chauvin. In addition, all four are charged with failing to help provide medical care to Floyd and “thereby acting with deliberate indifference eot a substantial risk of harm.” [1]

The latter three defendants, who are out on bail and scheduled for an August trial on the state charges,, appeared May 7 via Zoom before U.S. District Court Judge Paul A. Magnuson. Chauvin, however, who is in a state prison as a result of his conviction in state court on charges of second and third degree murder and second degree manslaughter, apparently will appear separately via Zoom on the new federal charges.[2]

The federal statute authorizing the case against Chauvin carries a possible sentence of life in prison or the death penalty because Floyd died during the commission of the alleged offenses, but it is not yet known what penalty federal prosecutors would seek.

This indictment also charges Chauvin with two separate counts alleging he willfully deprived a 14-year-old Minneapolis boy of his civil rights during a 2017 arrest. Chauvin pinned the teenager down and struck him on the head with his flashlight, then grabbed him by the throat and hit him again, according to court documents.

Reactions to this Case

Minnesota Attorney General Keith Ellison commented on these new federal charges, “”The federal government has a responsibility to protect the civil rights of every American and to pursue justice to the fullest extent of federal law.” federal prosecution for the violation of George Floyd’s civil rights is entirely appropriate, particularly now that Derek Chauvin has been convicted of murder under Minnesota law for the death of George Floyd. The State is planning to present our case against the other three defendants to another jury in Hennepin County later this summer.”

The attorney for the Floyd family, Benjamin Crump, also commented as follows, “Today’s federal indictment for criminal civil rights violations associated with the murder of George Floyd reinforces the strength and wisdom of the United States Constitution. The Constitution claims to be committed to life, liberty, and justice, and we are seeing this realized in the justice George Floyd continues to receive. … We are encouraged by these charges and eager to see continued justice in this historic case that will impact Black citizens and all Americans for generations to come.”

Also supporting these new charges were Al Sharpton and Derrick Johnson:

Sharpton, a longtime civil rights figure who eulogized Floyd at his funeral last year and has been a visible supporter of the family, said this new case “shows we have a Justice Department that deals with police criminality and does not excuse it nor allow police to act as though as what they do is acceptable behavior in the line of duty. . . . This is a significant development for those of us who have been engaged in the struggle and police reform movement.”
Johnson, National President of the NAACP, called the indictments a “step in the right direction,” but said the case highlights the need for police reforms, including implementing a national registry of police misconduct data.” While Derek Chauvin murdered George Floyd over 9 minutes and 29 seconds, no other police officer on the scene acted to save his life, The horrifying actions and inactions of all four police officers resulted in the preventable death of a loving father, son and brother. No police officer is above the law, nor should they ever be shielded from accountability. We need urgent reforms now.”

The Minneapolis Police and Peace Officers Association, which is providing legal representation for the four officers in their state cases, said it will be doing the same in federal court with the same attorneys.

This criminal case is unrelated to the recent U.S. Department of Justice investigation of the Minneapolis Police Department and to pending developments in the state criminal case against Chauvin—the prosecution’s request for enhanced sentencing of Chauvin, his sentencing hearing this June, his request for a new trial and his anticipated appeal—and the scheduled state court trial of the other three defendants in August. [3]

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[1] Indictment, U.S. v. Chauvin, Thao, Kueng and Lane, U.S. Dist. of Minn. (Case 0:21-cr-00108-PAM-TNL (May 6, 2021), https://int.nyt.com/data/documenttools/george-floyd-killing-civil-rights-charges/a0453a1c7b14ce33/full.pdf; Mannix, 4 ex-Minneapolis cops indicted on civil rights charges in George Floyd death, StarTribune (May 7, 2021); Nakamura, Justice Dept. charges ex-Minneapolis police officers with violating George Floyd’s civil rights, Wash. Post (May 7, 2021); Benner, Four former Minneapolis police officers are indicted on charges of violating George Floyd’s civil rights, N.Y. Times (May 7, 2021); Gurman & Barrett, Federal Grand Jury Indicts Former Minneapolis Police Officers in George Floyd Killing, W.S.J. (May 7, 2021).

[2] See Derek Chauvin Trial: Week Seven (Conviction), dwkcommentaries.com (April 21, 2021).

[3] See these posts to dwkcommentaries.com: Department of Justice Starts Investigation of Minneapolis Police Department (April 22, 2021); Derek Chauvin Trial: Defense Motion for New Trial and Impeachment of Jury Verdict (May 6, 2021);Update on Status of Trial Dates in George Floyd Criminal Cases (Feb. 4, 2021).

Results of 9/11/20 Hearing in George Floyd Criminal Cases

Information about what happened at the 9/11/20 hearing is provided by many media reports.[1] Here is a summary of those reports, again following the court’s Agenda for the hearing.

State’s Motions

Joint Trial. The State’s arguments were presented by Special Assistant Attorney General Neal Katyal, the famous attorney, law professor and commentator from Washington, D.C. He argued that the evidence against all four defendants is similar, that witnesses and family members are “likely to be traumatized by multiple trials” and that the interests of justice necessitate a single trial because separate trials would taint future juries. He also said, “The defendants watched the air go out of Mr. Floyd’s body together. And the defendants caused Mr. Floyd’s death together.”

Thao’s attorney responded to the last point by arguing that the jury pool already has been tainted by comments about the case by Attorney General Ellison and others.

A St. Paul attorney who is not involved in the case, Paul Applebaum, said, “it’s going to be tough for the defense attorneys to get the cases separated, partly because it would be difficult for Chauvin to blame the other officers for the charges of murder and manslaughter against him, but also because of the burden of holding four separate trials.”

Aggravating Factors for Upward Sentencing. Assistant Attorney General Matthew Frank argued that Floyd was particularly vulnerable because he was handcuffed and pinned to the ground. Judge Cahill expressed some skepticism of this point by asking whether what happens during an encounter qualifies for this purpose.

In its Notice of Intent To Offer Other Evidence of 9/10/20, the State said it intended to offer evidence of Chauvin’s eight prior instances of use of excessive force, including use of neck and upper body restraints. In four of those, Chauvin allegedly used them “beyond the point when such force was needed under the circumstance,” an indication of his pattern, including his restraint of Floyd.[2]

Defendant’s Motions

Motions for Change of Venue. Judge Cahill said it was too early to decide on a change of venue for the trial. He noted that Hennepin County District Court has been sending questionnaires to potential jurors to complete at home because of COVID risks and for the sake of expediency and that the court could start polling potential jurors ahead of the scheduled March 8 trial.

But two of the defense attorneys argued that the questionnaires should be completed in person at the courthouse because it carries more weight and meaning. Assistant Attorney General Matthew Frank agreed.

In response to defense arguments about adverse public opinion in Hennepin County, the Judge asked one of them, “There really isn’t a country, would you agree, or a state in this country where there hasn’t been a lot of publicity about George Floyd’s death?”

Jury Sequestration. The Judge said “it would be almost cruel to keep them in on weeks at a time. Instead, he suggested they be “semi-sequestered:” jurors drive to court each day for deputies to escort them from their vehicles to a secure elevator, have their lunches brought in to the jury room and then have them escorted back to their vehicles.

Motion to Disqualify HCAO [Hennepin County Attorney’s Office]. From the bench Judge Cahill said the HCAO’s work “sloppy” because they sent prosecutors to question the medical examiner, making them witnesses in the case. Therefore, he disqualified County Attorney Freeman and three assistants who questioned the Examiner because they are potential witnesses. However, others from the Office were not disqualified.

Afterwards Freeman and the Minnesota Attorney General requested reconsideration of this decision, which Judge Cahill granted. The request stated, “Any suggestion by Judge Cahill that the work of . . . [two Assistant County Attorneys] was sloppy was incorrect. The . . .[HCAO] fully stands by the work, dedication and commitment of two of the state’s best prosecutors. That third party mentioned by Judge Cahill does not need to be a non-attorney. [The two attorneys in question] asked to leave the case on June 3 and Frank [the other attorney in question] is the attorney of record, making . . .[the other two attorneys] valid third-parties and eligible to be called as witnesses by the defense. This HCAO decision is consistent with the relevant Minnesota Supreme Court case.

Rule 404 Evidence Motions. The Judge denied defense’s intent to offer evidence regarding Floyd’s arrest and conviction in Texas as it was irrelevant. He also denied the defense request for evidence regarding Floyd’s 05/06/19 medical incident at the Hennepin County Medical Center although he said it could come up at a later date.

Administrative Matters

Jury Selection. The Judge said that he anticipates jury selection will take two weeks with each prospective juror to take the witness stand for questioning by the attorneys.

COVID-19 Restrictions. The Judge said these restrictions would be in place with overflow rooms for family and press.

Trail Length. The Judge said he anticipates a four-week trial.

Conclusion

Although I was not in the courtroom to observe the Judge, the journalists’ reports suggest that the Judge is leaning towards a consolidated trial of all four defendants in Hennepin County under his supervision.

During the 3.5 hour hearing a highly organized, peaceful group of several hundred protesters gathered in front of the heavily fortified Family Justice Center. At first they laid silently on the ground for eight minutes and 46 seconds, which was the initially reported duration of the police pinning of Floyd on the pavement on May 25^th (that figure was incorrect; the corrected number is seven minutes and 46 seconds).[3] When they rose, Marvin Gaye’s recorded voice sang, “Mother, mother, there’s too many of you crying” (the first verse from the late singer’s 1970 song “What’s going on”).

The protesters then repeatedly chanted, “Indict, Convict, Send These Killer Cops to Jail. The Whole Damn System Is Guilty As Hell!” Another call was “Say his name!” with the “George Floyd” response. Another: “Who killed him?” and “MPD.” The messages on their signs included the following: “No clemency for killer kkkops” and “Recall Freeman” and a reconfigured MPD badge to say “Murderous City of Lakes Police.”

When Lane and Kueng and their attorneys left the building, they were met by protestors yelling “Murderer!” The crowd then remained until Floyd’s family members left the building, and many of the protestors turned into a dance line, including the Electric Slide.

The protestors apparently are not aware that their protests are ammunition for the defendants’ arguments for transferring the cases to another county, where emotions are not so virulent. The protestors should adopt a different strategy.

After the hearing, Ben Crump, an attorney for the Floyd family, publicly expressed outrage over defense suggestions that Floyd’s use of drugs or earlier run-ins with the police were relevant to the killing of Floyd. “The only overdose was an overdose of excessive force and racism. It is a blatant attempt to kill George Floyd a second time.”

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[1] Xiong & Olson, Judge disqualifies some in Mike Freeman’s office for ‘sloppy work’ in George Floyd case, StarTribune (Sept. 11, 2020); LIVE UPDATES: Tentative 2-week jury selection, 4-week trial format for George Floyd case, kstp.com (Sept. 11, 2020); Judge In Floyd Case Disqualifies Members of Hennepin co. Attorney’s Office, minnesota.cbslocal.com (Sept. 11, 2020); Olson, Protestors confront former Minneapolis police officers with shouts of ‘murderer,’ StarTribune (Sept. 11, 2020); Protestors Shout At Former MPD Officers As They Exit Pretrial Hearing in George Floyd Case, minnesota.cbslocal.com (Sept. 11, 2020); Collins & Williams, George Floyd killing: Judge disqualifies Freeman from cops’ trial, MPRNews (Sept. 11, 2020); Read Hennepin County Attorney Mike Freeman’s response to being disqualified from George Floyd case, StarTribune (Sept. 11, 2020); Furber, Arango & Eligon, Police Veteran Charged in George Floyd Killing Had Used Neck Restraints Before, N.Y. Times (Sept. 11, 2020); Bailey, Prosecutors allege former Minneapolis officer used neck restraint in several other cases before George Floyd’s death, Wash. Post (Sept. 11, 2020); George Floyd’s Family Lawyer Pushes Back on Police Claims (video), N.Y.Times (Sept. 11, 2020); Officers charged in George Floyd killing seek to place blame on one another, Guardian (Sept. 11, 2020).

[2] State’s Notice of Intent To Offer Other Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin county District Court Sept. 10, 2020).

[3] Revised Length of Time for Minneapolis Police Restraint of George Floyd. dwkcommentaries.com (June 18, 2020).

British Newspaper Releases Bodycam Footage of George Floyd’s Arrest and Killing

On August 3, a British newspaper’s website, Daily Mail.com, released about 10 minutes of the bodycam footage of former Minneapolis police officer Thomas Lane and about 18 minutes of ex-officer J. Alexander Kueng’s showing the May 25^th encounter and killing of George Floyd.[1]

The Daily Mail’s online article says the footage “was leaked to DailyMail.com” and “is revealed exclusively by” that site. The article includes photos of some segments of the video as well as a button to push “Watch the full video.” The article also includes the newspaper’s textual descriptions of what is seen on the videos and, in some instances, the newspaper’s interpretations of the encounter:

“It is clear from the video that Floyd was not trying to run away. He had plenty of time to leave the scene before police arrived. But instead he decided to sit in his car with two friends, giving the cops the opportunity to approach.”
“It shows a rookie officer terrifying Floyd by pointing a handgun at his head.”
“’Hey man, I’m sorry,’ Floyd says and apologizes again before Lane gets belligerent. ‘Put your f***ing hands up right now! Let me see your other hand,’ the cop is heard saying.”
“Floyd resisted as the cops tried to force him into the back of the car, telling them he suffers from claustrophobia and anxiety.”
“The tapes show in minute detail how a very distressed Floyd begs ‘Mr. Officer, please don’t shoot me. Please man,’ before the struggle that ended with his death.”
“It also shows how belligerent cops cursed at and manhandled the sobbing suspect, ignoring his pleas for compassion.”
“Floyd is even heard predicting his own death. ‘I’ll probably just die this way,’ he says.”
It shows an officer “callously picking a pebble from the squad car tire just inches from the dying man and seconds before he draws his last breath.”

The release of the videos was in violation of an order by Hennepin County District Judge Peter Cahill, who had made the videos available by appointment for public viewing at the courthouse on condition they not be recorded or publicly distributed. The court provided laptop computers for watching the videos to the scheduled viewers, who were required to not have their own computers and phones with them.[2]

The Daily Mail’s videos appear to have been recorded by an electronic device when they were shown on one of the court’s computers. The Daily Mail did not say how it had obtained the footages other than they had been “leaked.”

A court spokesman, Spencer Bickett, said the Court was aware of the leak, that an investigation was underway and that “The court will provide no further comment on this matter at this time.”

Minnesota Attorney General Keith Ellison stated that he was not the source of the leak and that his office “will continue to take the strictest precautions to ensure a fair trial.”

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[1] Gould, EXCLUSIVE: Police bodycam footage shows moment-by-moment arrest of George Floyd for the first time-from terror on his face when officer points gun at his head, sobbing before he’s shoved into a squad car and begging to breathe as his life drains away. DailyMaiol.com (Aug. 3, 2020); Wax-Thibodeaux, Bailey & Berman, Protests live updates: Daily Mail publishes ‘leaked’ police body-cam footage of George Floyd arrest, Wash. Post (Aug. 3, 2020); George Floyd Case: Daily Mail Obtains Body Cam Video from 2 Officers in Floyd’s Arrest Death, CBS Minnesota (Aug. 3, 2020); Assoc. Press, British Paper Publishes Police Bodycam Video of Floyd Arrest, N.Y. Times (Aug. 3, 2020); Xiong, Daily Mail publishes leaked bodycam footage of George Floyd arrest, killing, StarTribune (Aug. 3, 2020).

[2] 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); Journalist’s Report on viewing Two Bodycam Footages of George Floyd Killing, dwkcommentaries.com: (July 15, 2020); Bodycam video shows officer pulled gun on George Floyd early on, StarTribune (July 16, 2020). See also List of Posts to dwkcommentaries—Topical: George Floyd Killing.