Defense Attorneys Accuse Attorney General Ellison of Contempt of Court in George Floyd Cases  

On July 14 Earl Gray, the attorney for defendant Thomas Lane, and Robert Paule, the attorney for defendant Tou Thau, accused Attorney General Keith Ellison of contempt of court by his issuance of a statement announcing the appointment of four Special Assistant Attorney Generals in the case.[1] That statement, which was the subject of a prior post, merely said the following:

  • “Seasoned attorneys join AG Ellison’s team pro bono in George Floyd case”
  • “Includes former acting U.S. Solicitor General Neal Katyal, Minnesota attorneys Lola Velázquez-Aguilu, Jerry Blackwell, and Steve Schleicher”
  • “Minnesota Attorney General Keith Ellison today announced that four seasoned attorneys and trial lawyers have joined on a pro bonobasis the prosecution team he leads in the George Floyd case. This team includes attorneys from the Minnesota Attorney General’s Office and the Hennepin County Attorney’s Office.”
  • “’Out of respect for Judge Cahill’s gag order, I will say simply that I’ve put together an exceptional team with experience and expertise across many disciplines. We are united in our responsibility to pursue justice in this case,’ Attorney General Ellison said.”
  • “The attorneys joining the prosecution team, each of whom Attorney General Ellison has appointed a Special Assistant Attorney General, are:
    • “Neal Katyal, partner at the international law firm Hogan Lovells, and former acting Solicitor General and former Principal Deputy Solicitor General of the United States.
    • Lola Velázquez-Aguilu, litigation and investigation counsel for Medtronic, and former prosecutor with the U.S. Attorney’s Office for the District of Minnesota. During her tenure at the U.S. Attorney’s Office, she prosecuted complex multi-defendant, white-collar crimes, including the successful prosecution and trial of several former executives from Starkey Hearing Technologies. Until today, she served as Chairwoman of the Commission on Judicial Selection, to which position she was appointed by Governor Tim Walz.
    • Jerry Blackwell, trial lawyer and founding partner, CEO, and chairman of the Minneapolis law firm Blackwell Burke, P.A. In June 2020, he won a full, first-ever posthumous pardon for Max Mason, who was wrongly convicted of rape in connection with the infamous Duluth lynching of June 1920.
    • Steven L. Schleicher, partner at the Minneapolis law firm Maslon LLP; former prosecutor with the U.S. Attorney’s Office for the District of Minnesota, the Minnesota Attorney General’s Office, the Winona County Attorney’s Office, and U.S. Army Reserve JAG Corps. In 2016, he led the successful prosecution of the person responsible for the kidnapping and murder of Jacob Wetterling.”

According to Mr. Gray, “Ellison should be jailed along with” his spokesman John Stiles. “There is no reason to announce that these so called ‘super stars’ are joining the prosecution and that they’re doing it for free. It is an obvious statement to the public that these ‘super stars’ lawyers believe that our clients are guilty. Further proof that the news release was done to influence the public is that it was released by John Stiles, who, according to Google, is a chief strategy officer and builds reputations and brands.”

Mr. Paule merely moved the Court for an order holding “Keith Ellison, the Attorney General for Minnesota and lead prosecutor in the above-captioned case, in contempt of court and ordering sanctions as a result of his actions.”

The Court’s Gag Order[2]

The purported basis for these motions is the Court’s Gag Order of July 9, which prohibited attorneys and others working on the matter from publicly talking about  “any information, opinions, strategies, plans or potential evidence . . . either to the media or members of the general public. This includes, but is not limited to, any discovery provided to the parties, and any exhibits in the case.”

Reactions

Joseph Daly, professor emeritus at Mitchell Hamline School of Law, believes it unlikely that the judge will sanction or have Ellison and Stiles arrested. “Judges do not like to sanction lawyers unless their conduct is outrageous.” At most, Daly thought, the judge might  issue a warning or clarify his gag order.

I concur in Daly’s opinion. The Attorney General’s statement, in my judgment, did not concern the AG Office’s “opinions, strategies, plans or potential evidence” or evidentiary “discovery” or “exhibits in the case.” Yes, the statement did contain “information” relating to the case, but it was not information relating to opinions, strategies, plans or potential evidence or evidentiary discovery or exhibits in the case. Moreover, any of the parties in this or any other criminal or civil case has a right to hire new or additional attorneys and to give public notice of such developments.

In short, there is no basis in the Attorney General’s statement for the two defense attorneys’ assertion that it was intended to tell the public that these ‘super stars’ lawyers believe that our clients are guilty.’  It would be just as easy to speculate, without any foundation, that the statement was a sign that the Attorney General is worried about the strength of the criminal charges or the capabilities of the existing team of prosecution attorneys.

These motions are ridiculous and should be denied.

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[1]  Xiong, Defense attorneys in George Floyd’s death accuse AG Ellison of contempt of court, StarTribune (July 14, 2020); Minnesota Attorney General, Seasoned attorneys join AG Ellison’s team pro bono in George Floyd Case (July 13, 2020).

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

 

Pretrial Hearing in Criminal Cases Over George Floyd Killing

On June 29, Hennepin County District Judge Peter Cahill held a pretrial hearing in the George Floyd criminal cases against Derek Chauvin,Tou Thao,Thomas Lane and J. Alexander Kueng.[1]

The judge scheduled another pretrial hearing for September 11 and for the trial tentatively to start on March 8. Although the prosecutors seem to be pushing for a consolidated trial, defense counsel are expected to request separate trials so that should be a future issue for the court to resolve.

None of the officers entered pleas at the hearing, but Lane’s attorney told the court he would be filing a motion to dismiss the case against his client for alleged insufficiency of evidence. Afterwards Kueng’s attorney filed a document with the court advising that his client intends to plead not guilty, claiming self-defense and use of reasonable and authorized force.

One of the major issues at the hearing was whether public officials’ statements about the cases might call for a change of venue from Minneapolis in Hennepin County to another county. Robert Paule, the attorney for Thao, said he was planning to make such a motion in light of public statements by Police Chief Arradondo and Department of Public Safety Commissioner Harrington, who have called Floyd’s death a “murder,” along with other statements by Gov. Tim Walz and Attorney General Keith Ellison.

Judge Cahill acknowledged these statements, and said people who are aligned with the state’s stance on the case are pushing it toward a change of venue. “It’s in everyone’s best interest” that no public statements about the case be made, the Judge said, noting that they’ve come from family, friends and law enforcement officials. “What they’re doing is endangering the right to a fair trial” for all the parties.

“They need to understand that; at this point they need to be aware of that,” Cahill said, and asked Assistant Attorney General Matthew Frank if prosecutors are addressing the matter with public officials. In response, Frank said, “We are just as interested in fair trial and are acutely aware of the issues you talk about. We have asked people not to talk about this case … we’ve done our best to make the court’s concerns known to them and will continue to do so.”

The Judge also admonished two members of Floyd’s family for visibly reacting to his statements at the hearing. Afterwards George Floyd’s uncle, Selwyn Jones, told journalists he was offended by the Judge’s comments.

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[1] Xiong, Former officers to appear in court Monday in George Floyd killing, StarTribune (June 29, 2020); Xiong, In George Floyd case,  judge warns that public officials speaking out could force venue change, StarTribune (June 30, 2020); Neuman, Tentative Trial Date Set For Ex-Minneapolis Officers Accused in George Floyd Death, MPR News (June 29, 2020); Chakraborty, Four ex-cops Linked to George Floyd’s death appear in court, judge sets 2021 trial date, Fox News (June 29, 2020); Bailey & Berman, Ex-Minneapolis officers charged in George Floyd’s killing get tentative trial date in March, Wash. Post (June 29, 2020); Arango, In Court, Derek Chauvin’s Lawyers Say Officials Have Biased the Case, N.Y. Times (June 29, 2020); Wernau & Barrett, Officers charged in George Floyd’s Killing Appear Before Judge, W.S.J. (June 30, 2020); George Floyd judge warns he may move trials if officials keep talking about the case, Guardian (June 29, 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).)