Completion of Federal Criminal Cases Over Killing of George Floyd

The federal criminal cases over the May 2020 Minneapolis killing of George Floyd started with the May 2021 grand jury indictment of the four ex-Minneapolis police officers who were involved (Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thao). The significant subsequent events in those cases were the December 2021 guilty plea of Chauvin; the January-February 2022 federal jury trial of the other three defendants and their guilty verdict; and the July 2022 sentencing of all four defendants. Here are some of the details of those events.

The Criminal Indictment[1]

On May 7, 2021, the U.S. District Court for the District of Minnesota unsealed the federal grand jury indictment of four ex-Minneapolis police officers (Chauvin, Lane, Kueng and Thao) for allegedly using the “color of the law” on May 25, 2020 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 were charged with failing to help provide medical care to Floyd and “thereby acting with deliberate indifference to create a substantial risk of harm.”

Chauvin’s Guilty Plea[2]

On December 15, 2021, at the St. Paul federal courthouse Derek Chauvin pleaded guilty to two counts of depriving George Floyd of his federally-protected civil rights by pinning his knee against Floyd’s neck and by failing to provide medical care for Floyd on May 25, 2020, ultimately causing his death. Chauvin also pleaded guilty to separate federal charges for holding down with his knee a 14-year-old boy in 2007 and failing to provide medical care to the boy and thereby causing non-fatal injuries.

On May 4, 2022, U.S. District Judge Paul Magnuson issued an Order accepting Chauvin’s plea agreement and stating that the court “will sentence Defendant in accordance with the terms of the plea agreement,” which provided that both sides agreed he should face a sentence from 20 to 25 years.

Federal Criminal Trial of the Other Three Defendants[3]

Lane , Kueng and Thao went to trial on these charges in January 2022. On February 24, 2022, the jury rendered its verdict that all three were guilty of all charges.

Federal Sentencing of Chauvin[4]

On July 7, 2022, in accordance with that approved plea agreement, Judge Magnuson  sentenced Chauvin to 245 months (20.4 years) in federal prison for these crimes. Said the Judge, ““I really don’t know why you did what you did. But to put your knee on another person’s neck until they expire is simply wrong and for that conduct you must be substantially punished. Your conduct is wrong and it is offensive. To put a knee on another person’s neck is unconscionable.” In addition, the Judge said that Chauvin’s taking control of the Floyd arrest had “absolutely destroyed the lives of three other young officers [Lane, Kueng and Thao].”

Federal Sentencing of Lane[5]

On June 29, 2022, federal prosecutors in a written brief asked the federal court to impose a sentence of up to 6.5 years for Lane’s conviction.

At the July 21st hearing on Lane’s sentencing, Assistant U.S. Attorney Manda Sertich argued, “It is fair and reasonable for a police officer to act when they both appreciate the seriousness of the situation and have the training to make a difference. But there has to be a line where blindly following a senior officer’s lead even for the newest officers cannot be acceptable and that line is surely crossed when someone is dying slowly in front of the new officer.” Moreover, she said, Lane’s decision not to provide Floyd with medical aid was a “catastrophic lapse” that resulted in Floyd’s death.

In response, Lane’s attorney, Earl Gray, argued that Lane should receive downwards departures from the sentencing guidelines because he was “substantially less culpable” than the other defendants and had accepted responsibility for the crime with his guilty plea to the state criminal charges.

Others who made comments at the hearing were George Floyd’s brother, Philonise Floyd, who asked the judge to impose the maximum sentence on Lane, and George Floyd’s girlfriend, Courtney Ross, who said she did not believe Lane was a bad guy, but still had to pay his dues while hoping that he would find his “inner hero” when he gets out of prison.

U.S. District Court Judge Paul Magnuson then sentenced Lane to 30 months (2 ½ years) in federal prison followed by two years of supervised release. The Judge noted the Court’s receipt of 145 letters with favorable comments on Lane and his being less responsible for Floyd’s killing as favoring a lesser sentence even though this was “a very serious offense wherein a life was lost. The fact that you did not get up and remove Mr. Chauvin from Mr. Floyd when Mr. Floyd became unresponsive is a violation of the law.”

Judge Magnuson also said he would urge the federal Bureau of Prisons to send Lane to a facility in Duluth and set a self-surrender date of October 4th after Lane’s September 21st state court sentencing on his guilty plea.

Afterwards a retired Bloomington, MN police officer, Richard Greelis, expresses his belief that Lane, a four-day officer, “should never have been charged with a crime” because “rookie officers are impressed . . . to follow the advice and example of both the FTO [here, Chauvin] and all veteran officers on the street. . . . Rookies would be totally out of their league without their FTO there to guide them. Believe me, all the training in the world does not and cannot prepare you for that first day in uniform.”

Federal Sentencing of Kueng and Thao[6]

On July 22, 2022, Judge Magnuson held a hearing to announce that he would calculate the offense levels for the sentences on Kueng and Thao on the involuntary manslaughter charge, not the second-degree murder charge. This was because the Judge said, “the evidence showed that Kueng genuinely thought that Mr. Floyd was suffering from excited delirium with a drug overdose, and Thao genuinely believed that the officers were dealing with a drug overdose with possible excited delirium.” As a result, said the Judge, these facts precluded the element of “malice aforethought” necessary to prove second-degree murder.

At this hearing, the Judge also rejected the two men’s claims that they were entitled to lesser sentences because they were acting under “color of law” because their positions in law enforcement were addressed in their criminal convictions.

Kueng. At a July 27th hearing Judge Magnuson sentenced Kueng to three years in prison. According to the Judge, there was no question that Kueng violated Floyd’s rights by failing to get off him when Floyd became unresponsive. But there was “an incredible number “ of letters supporting Kueng from other police officers that emphasized his rookie status. The prison term will begin this coming October.

Thao. At a second July 27th hearing, Thao spent over 30 minutes reading aloud several Biblical passages. Judge Magnuson sentenced Thao to 3 ½ years, to begin this coming October.

Conclusion

Absent an appeal by either or both Kueng and Thao from their convictions and/or sentences, the four federal criminal cases over the death of George Floyd have been concluded.

Both Kueng and Thao, however, still face an October 24th trial in Minnesota state court on charges of aiding and abetting both second-degree murder and second-degree manslaughter. Now, however, there is an incentive for these two men to seek a guilty plea to the state charges for sentences not exceeding these federal sentences, to be served concurrently in federal prison. [7]

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

[2] Derek Chauvin Pleads Guilty to Federal Criminal Charges Over Killing of George Floyd, dwkcommentaries.com (Dec. 16, 2021); Comment: Federal Court Accepts Chauvin’s Plea Agreement, dwkcommentaries.com (July 7, 2022);

[3] Federal Criminal Trial for Killing George Floyd: Jury Deliberations and Verdict, dwkcommentaries.com (Feb. 25, 2022). Further details of this criminal prosecution are provided in posts listed in the “Federal Criminal Cases Against Ex-Minneapolis Policemen Over Killing of George Floyd (and Against Derek Chauvin over Excess Force Against Teenager)” section of List of Posts to dwkcommentaries—Topical: George Floyd Killing.

[4] Federal Court Sentences Derek Chauvin to 245 Months (20.4 years) for Depriving George Floyd (and John Pope) of Their Federal Civil Rights, dwkcommentaries.com (July 8, 2022).

[5] Federal Prosecution Proposes Criminal Sentences for Ex-Officers Lane, Kueng and Thao’s Convictions for Involvement in the Killing of George Floyd, dwkcommentaries.com (July 2, 2022); Montemayor, Ex-officer Thomas Lane sentenced to 2 ½ years in prison for violating George Floyd’s civil rights, StarTribune (July 21, 2022); Kummer & Bogel-Burroughs, Ex-Officer Who Held George Floyd’s Legs Sentenced to 30 Months in Prison, N.Y. Times (July 21, 2022); Collins, Ex-cop Lane gets 2 ½ years for violating George Floyd’s civil rights, MPRnews (July 21, 2022); Judgment in a Criminal Case, U.S. v. Lane, Case No. 0:21-CR-00108 (4), U.S. Dist. Ct., D. MN (July 21, 2022); Greelis, George Floyd murder: Reduced sentence for rookie officer makes sense, StarTribune (July 25, 2020).

[6] Montemayor, Kueng sentenced to 3 years, Thao 3 ½ years for violating George Floyd’s civil rights, StarTribune (July 27, 2022) Forliti (AP), Ex-cops Kueng, Thao sentenced for violating Floyd’s rights, Wash. Post (July 27, 2022); Kummer & Bogel-Burroughs, Last 2 Officers Involved in George Floyd’s Death Are Sentenced to Prison, N.Y. Times (July 27, 2022) .

[7] Judge agrees to move trial of two former Minneapolis officers to October in George Floyd’s death, StarTribune (June 21, 2022). Resetting State Criminal Trial Date for Kueng and Thao for Killing of George Floyd, ddwkcommentaries.com (June 21, 2022). [Comment:] District Court Order Regarding New Trial Date, dwkcommentaries.com (June 24, 2022).

 

 

Federal Court Sentences Derek Chauvin to 245 months (20.4 years) for Depriving George Floyd (and John Pope) of Their Federal Civil Rights

On July 7, 2022, in the U.S. District Court in St. Paul, Minnesota, Judge Paul A. Magnuson sentenced Derek Chauvin to 245 months (20.4 years) in federal prison for (a) his depriving George Floyd of his federal civil rights by pinning his knee against Floyd’s neck and by failing to provide medical care for Floyd on May 25, 2020, ultimately causing his death and (b) Chauvin’s holding down with his knee John Pope, then  a 14-year old boy in 2007, and failing to provide medical care to the boy and thereby causing non-fatal injuries. [1]

At the hearing, Judge Magnuson said, “I really don’t know why you did what you did. But to put your knee on another person’s neck until they expire is simply wrong and for that conduct you must be substantially punished. Your conduct is wrong and it is offensive. To put a knee on another person’s neck is unconscionable.” In addition, the Judge said that Chauvin’s taking control of the Floyd arrest had “absolutely destroyed the lives of three other young officers [Thomas Lane, J. Alexander Kueng and Tou Thao].”

Other Comments at the Hearing

Before the Judge announced the sentence, the federal prosecutor, LeeAnn Bell, said the sentence “needs to reflect the intentionality. He wasn’t a rookie. He’d been a police officer for years. He knew what his training was. He knew what he was doing was wrong and he did it anyway.” The prosecution’s request for the longer sentence of 25 years reflected that fact that Chauvin’s crime against John Pope was not part of the state case over the killing of George Floyd, for which Chauvin previously was convicted and sentenced by the state court.

George Floyd’s brother, Philonise, said, “I haven’t had a real night’s sleep since this happened. Hearing my brother beg and plead for his life again and again, screaming for our mom.” His family had received a “life sentence. We will never get George back.”

Courtney Ross, Floyd’s girlfriend, in a written statement read by the Judge said, “I don’t hate you, Mr. Chauvin. I’m working on forgiving you because that’s what George Floyd would want me to do.”

John Pope told the court that his encounter with Chauvin had changed him from a “happy’ person to someone who saw his dreams “slip from my hands.” Pope hopes Chauvin takes this time to think about what he could have done differently and what he did to others,” noting that Chauvin’s actions against him had gone unchallenged until Floyd’s killing.

Chauvin’s attorney, Eric Nelson, told the court that Chauvin had received over 1,000 letters of support, evidencing his good “character and qualities as a human being,” that Chauvin had already been punished by [the State of Minnesota] for the offenses [against Mr. Floyd] and that Chauvin had accepted his wrongdoing and had expressed remorse for the harm that has flowed from his actions.

Chauvin himself said that he wanted “to wish [Floyd’s children] all the best in their life and have excellent guidance in becoming great adults.” To John Pope, Chauvin said, “I hope you have a good relationship with your mother and also your sister, and I hope you have the ability to get the best education possible to lead a productive and rewarding life.” But Chauvin did not apologize.

Chauvin’s mother, Carolyn Pawlenty, thanked his supporters and denounced the “misinformation” in media that her son is a racist and has no heart. Everyone in Minnesota needs to heal and realize that all lives matter, no matter the color of your skin. Every life matters.” She then asked for federal prison placement in Minnesota or Iowa to be close to his family.

Background for the Hearing[2]

On December 15, 2021, Chauvin pleaded guilty to two counts of depriving Mr. Floyd of his federally-protected civil rights and ultimately causing his death and to the charges for his 2017 misconduct with Mr. Pope, and under the negotiated Plea Agreement the prosecution and Chauvin agreed that the court could impose imprisonment of 20 to 25 years for these crimes.

This plea agreement was approved by Judge Magnuson on May 4, 2022, when he said the federal sentence would be in accordance with that plea agreement.

Conclusion[3]

Since his conviction on the state criminal charges, Chauvin has been in “administrative segregation” in Minnesota’s maximum security prison in Oak Park Heights, MN and largely confined to a 10-by-10-foot room with about one hour a day outside for exercise.

Now he will be transferred to a federal prison. The federal Bureau of Prisons will decide where Chauvin will be assigned, after evaluating his medical or programming needs, separation and security measures to ensure his protection and proximity to his release residence. Experts speculate that he probably will start in a medium-security facility. Former U.S. Attorney Tom Heffelfinger observed, “It’s dangerous to be an officer in any prison. It’s even more dangerous in state prison because of the nature of the inmate population. There are gangs, for example. And police officers just don’t do well there. Those risks are reduced in a federal prison.”

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1  U.S. Sentencing Memorandum, U.S. v. Chauvin, Criminal No. 21-108(01), U.S. Dist. Ct. MN (June 22, 2022); Defendant’s Position Regarding Sentencing, U.S. v. Chauvin, Criminal No. 21-108(01), U.S. Dist. Ct. MN (June 22, 2022); Montemayor, Derek Chauvin’s federal sentencing scheduled for Thursday, StarTribune (July 5, 2020); Karnowski (AP), Derek Chauvin to be sentenced Thursday in St. Paul on federal charges in George Floyd killing, Pioneer Press (July 5, 2022); Almasy, Derek Chauvin to be sentenced Thursday on  federal charges, cnn.com (July 7, 2022); Bailey, Derek Chauvin faces federal sentence for Floyd’s killing, Wash. Post (July 7, 2022); Collins & Sepic, George Floyd killing: Derek Chauvin sentencing underway in federal court, MPRNews (July 7, 2022); Karnowski (AP), Chauvin gets 21 years for violating Floyd’s civil rights, AP News.com (July 7, 2022); Bailey, Chauvin sentenced to 20 years for violating Floyd’s civil rights, Wash. Post (July 7, 2022); Sepic & Collins, Ex-cop Chauvin gets 20-plus years for violating George Floyd’s civil rights, MPRNews (July 7, 2022); Senter & Dewan, Killer of George Floyd Sentenced to 21 Years for violating civil rights, N.Y. Times (July 7, 2022).

[2] Federal Criminal Trial for Killing George Floyd: Jury Deliberations and Verdict, dwkcommentaries.com (Feb. 25, 2022); Derek Chauvin Pleads Guilty to Federal Criminal Charges Over George Floyd Killing and Excess Force Against Teenager, dwkcommentaries.com (Dec. 16, 2021); Comment: Federal Court Accepts Chauvin’s Plea Agreement, dwkcommentaries.com (July 7, 2022); Order, U.S. v. Chauvin, Criminal No. 21-108(01), U.S. Dist. Ct. MN (May 4, 2022).

[3]   EXPLAINER: Chauvin heads to federal prison for Floyd’s death. StarTribune (July 7, 2022).

Federal Prosecution Proposes Criminal Sentences for Ex-Officers Lane, Kueng and Thao’s Convictions for Involvement in the Killing of George Floyd

On June 29 , federal prosecutors asked the U.S. District Court for the District of Minnesota to impose a sentence of up to 6.5 years for Thomas Lane’s conviction for his involvement in the May 2020 killing of George Floyd. The prosecutors also asked on June 29 and 30 for higher sentences for ex-officers J. Alexander Kueng and Tou Thao, who also have been convicted for their involvement in that killing.[1]

The prosecution’s reasons for these recommendations were very detailed in compliance with the requirements of the federal statute for the imposition of sentences (18 U.S.C. sec. 3553).

All of these convictions are based upon a February 2022 federal jury’s verdict of guilty for these three men for violating Floyd’s civil rights by failing to give Floyd medical care while Kueng also was found guilty of not trying to stop Derek Chauvin from using excessive force. [2]

Reasons for Proposed Sentence of Lane[3]

According to the prosecution, a “within guideline range sentence of 63 months (5.25 years) to 78 months (6.5 years) [for Lane] is reasonable and appropriate in light of the serious consequences of . . . Lane’s criminal omissions and in consideration of the 18 U.S.C. sec. 3553(a) factors.”

“As the jury necessarily found, . . . [Lane] recognized that  . . . Floyd was suffering from a serious medical need and failed to provide him with the basic medical aid and that . . .[Lane] was trained and duty-bound to give such aid at a time when that would have made a difference. . . . . [Lane’s] failure to provide medical aid had serious consequences for Mr. Floyd, Mr. Floyd’s family, . . . Lane’s fellow law enforcement officers, and the broader community. . . . [This proposed sentence] is justified by the gravity and impact of his inaction.”

The prosecution then rejected, with appropriate legal citations, the following Lane objections to this proposed sentence:  (1)  the victim was lawfully restrained; (2) Lane was a minimal participant in the restraint; (3) there was double counting of Lane’s status as someone acting under color of law; and (4) Lane’s guilty plea justifies a downward adjustment because it came after conviction at trial.

Next the prosecution argued that the section 3553(a) factors justified a within-guidelines sentence for Lane: the nature and circumstances of the offense (Lane was well placed to save Floyd’s life) and Lane had information about Floyd’s condition and information and training of how to respond to this condition. In addition, a guideline-range sentence will most appropriately capture the significance of Lane’s inaction, the lasting harm his inaction inflicted on Floyd, the other officers and the larger community.”

Lane’s being a police officer is another reason justifying a higher sentence, and his relative inexperience as an officer is undermined by Lane’s recognition of Floyd’s condition and Lane’s initial training and knowledge.

A within-guidelines sentence of Lane “will remind other officers of their constitutional obligations as law enforcement officers, including an affirmative obligation to protect the lives and safety of those in their custody and thus serve to protect the American public by promoting respect for the law.

Therefore, Lane “should be sentenced to a within-guidelines sentence of 63 months (5.25 years) to 78 months (6.5 years).”

This statement by the prosecution also constitutes a rejection of Lane’s motion for a downward sentencing variance.

Reasons for Proposed Sentence of Kueng[4]

The prosecution argued that a sentence of Kueng should be “significantly more “ than the proposed sentence of 63 to 78 months for Lane because (1) Kueng abused state powers to cause the death of . . . Floyd; (2) Kueng lacked “acceptance of responsibility , including his (at time obstructive and incredible) trial testimony;” (3) the need to promote respect for the law and deter other police officers from standing by as their fellow officers inflict abuses on unresisting arrestees,” and (4) “the need for consistency with respect to other cases in which officers have been convicted of failing to intervene to protect an arrestee from abuse.” The prosecution also argued that Kueng’s sentence should be less than the expected sentence of 240-300 months of imprisonment for Derek Chauvin.

Reasons for Proposed Sentence of Thao[5]

The prosecution argued that Thao’s sentence would be less than the 240-300 months’ anticipated sentence for Chauvin and “significantly more that the Guidelines range applicable to . . . Lane . . . of 63 to 78 months’ imprisonment. Such a sentence is sufficient, but not greater than necessary, to comply with the requirements of 18 U.S.C. sec. 3553(a).”

This proposal, said the prosecution, was justified by the following: (1) ‘the offense resulted in the death of . . Floyd, and thus caused the gravest of harms;” (2) “Floyd was in [Thao’s] custody and care and [he] knew he had a duty to protect . . . [Floyd];” (3) Thao “had the knowledge, opportunity, information and time to recognize the need for action to stop the unreasonable force and to provide medical aid—and yet he failed to act;” (4) Thao’s “lack of acceptance of responsibility, including his (at times incredible)  trial testimony merits a significant sentence;” and (5)  “a significant sentence is needed to promote respect for the law and to deter other police officers from standing by as their fellow officers commit a crime.”

Thao, on the other hand, stated he believes the appropriate calculated Guidelines Range for him is 24-30 months  and requested the Court to impose a sentence of 24 months imprisonment. “This sentence would be sufficient, but not greater than necessary to achieve the goals outlined in [section] 3553.”

Conclusion

We all now wait to see if these defendants offer any other contrary arguments and the decisions on the sentences by Judge Magnuson.

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[1] Montemayor, Federal prosecutors seek up to 6 ½ years for ex-officers for violating George Floyd’s civil rights, StarTribune (June 29, 2022); Karnowski (AP), Prosecutors seek prison for 3 ex-cops in Floyd killing, StarTribune (June 29, 2022); Montemayor, Feds ask for up to 6 ½ years  in prison for ex-MPD officer Thao for failing to help George Floyd, StarTribune (June 30, 2020).

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

[3]  United States’ Sentencing Memorandum, U.S. v. Lane, Case 0:21-cr-0018, U.S. Dist. Ct., D. MN (June 29, 2022); Ex-Officer Thomas  Lane Pleads Guilty State Charge of Aiding and Abetting Manslaughter of George Floyd, dwkcommentaries.com (May 18, 2022).

[4]  Government’s Position with Respect to Sentencing, U.S. v. Kueng,, Case 0-21-cr-00188, U.S. Dist. Ct. MN (June 29, 2022); Defendant Kueng’s Motion for a Sentencing Variance, U.S. v. Kueng,, Case 0-21-cr-00188, U.S. Dist. Ct. MN (June 29, 2022).

[5] Government’s Position with Respect to Sentencing, U.S. v. Thao, U.S. Dist. Ct. MN, Case No. 0:21-cr-00108 (June 30,2022); Defendants’ Position with Respect to Sentencing, U.S. v. Thao, U.S. Dist. Ct. MN, Case No. 0:21-cr-00108 (June 30,2022).

 

State Criminal Trial for Thao and Kueng Postponed to January 2023

On June 6, Hennepin County District Court Judge Peter Cahill granted motions byTou Thao and J. Alexander Kueng to postpone their criminal trials with a new date of January 5 for their commencement. The court also denied the defendants’ motion to change venue and the motion of the Media Coalition to reconsider the court’s previous barring of audio and video coverage of this trial.[1]

The Reasons for Changing the Trial Date

 The Minnesota Supreme Court has recognized that “continuance of a trial date has been recognized as an effective tool to diminish the effect of prejudicial pretrial publicity.” Here, the defendants have cited two such events.

  • First, on May 18, 2022 (less than four week prior to the scheduled start of the trial co-defendant Thomas Lane pled guilty to aiding and abetting second-degree manslaughter. [2]
  • Second, on February 24, 2022, Thao, Kueng and Lane were found guilty by a federal jury of violating George Floyd’s civil rights “based largely on the same evidence as will be introduced in Defendants Thao’s and Kueng’s joint state trial.”[3]

“These two recent events and the publicity surrounding them are significant in they . . could make it difficult for jurors to presume Thao and Kueng innocent of the State charges.” A postponement of the trial for nearly seven months should “diminish the impact of this publicity on the Defendants’ right and ability to receive a fair trial from an impartial and unbiased jury.”

The Reasons for Denial of Change of Venue

Although there has been “saturation news coverage in the Twin Cities in print and broadcast media” of the George Floyd killing and subsequent court proceedings, the same is true “throughout the entire State of Minnesota—not to mention nationally.”

Moreover, “a prospective juror’s exposure to pretrial publicity does not alone create a reasonable likelihood of an unfair trial. . . . Instead, the issue is whether a prospective juror can set aside his or her impressions or opinions based on pretrial publicity, be fair and impartial, and render an impartial verdict.” In addition, this court has taken extensive measures in the earlier Chauvin trial and is now implementing those same measures for the trial of Thao and Kueng.

In addition, postponing the trial to January 2023 will put more than two and one-half years since the killing of Mr. Floyd; more than 20 months since the jury verdict in the Chauvin case; [4] almost eleven months since the jury verdict against Thao and Kueng in the federal civil rights trial; and probably four to six months since their upcoming sentencing in that federal trial.

Finally, this court has continued to impose “appropriate steps to ensure the selection of an impartial jury” and Hennepin County is “the most populous and diverse county in the state.”

The Reasons for Denial of Audio/Video Coverage

“With the reduction in the number of defendants, . . . [the trial courtroom] can now be configured, with the relaxed COVID protocols, to accommodate at least eighteen seats for the public . . . [which] does not amount to a courtroom closure.”

However, “if there is a significant rule change in place by [the commencement of this trial next January], the court would reconsider allowing audio and video coverage.”

Another Consideration

Another consideration favoring the postponement of the trial not mentioned by Judge Cahill was providing additional time for these two defendants, especially after their federal sentencing, to consider attempting to negotiate an agreement with the prosecution for their pleading guilty to the state charges.

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[1] Walsh, State Trial for fired Minneapolis officers Thao, Kueng delayed until January, Star Tribune (June 6, 2022); Order and Memorandum Opinion Concerning Trial, State v. Thao & Kueng, Court Files Nos. 27-CR-20-12949 & 27-Cr-20-12953, Hennepin County District Court (June 6, 2022).

[2] Ex-Officer Thomas Lane Pleads Guilty to State Charge of Aiding and Abetting Manslaughter of George Floyd, dwkcommentaries.com (May 18, 2022). Comment: More Details on Lane’s Guilty Plea, dwkcommentaries.com (May 19, 2022).

[3]  Federal Criminal Trial for Killing George Floyd: Jury Deliberations and Verdict, dwkcommentaries.com (Feb. 25, 2022).

[4] Derek Chauvin Trial: Week Seven (Conviction), dwkcommentaries.com (April 21, 2021); Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment, dwkcommentaries.com (June 28, 2021).

 

Remaining Ex-Cops in Criminal Case Over Killing of George Floyd Ask for Delay and Change of Venue for Trial

On May 31st Defendants Tou Thao and J. Alexander Kueng asked Hennepin County District Court Judge Peter Cahill to postpone their criminal trial now scheduled to start on June 13 to after federal sentencing and to change the venue for the trial to another county outside the Twin Cities.[1] They contend that it will be impossible to select an impartial jury in light of the following recent developments: the recent guilty plea from their co-defendant, Thomas Lane;[2] the February guilty verdicts for all three former officers in federal court;[3] the settling of costly civil rights lawsuits and public comments from politicians like Attorney General Keith Ellison; and the May 31st premier of the PBS Frontline/StarTribune documentary of the George Floyd killing and its aftermath.[4]

The prosecution (State of Minnesota) opposes these motions.[5] It states that this is a belated attempt “to move this case to somewhere else in Minnesota or delay proceedings for yet another year. This newest motion—Defendant Kueng’s fourth such request—does not offer new facts that warrant this court revisiting its earlier decisions and changing course at this late hour. . . . [This] latest filing is nothing more than a last-ditch attempt to evade judgment.”

Conclusion

These motions, in the opinion of this blogger, will promptly be denied.

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[1] Defendant’s Fourth Motion for Change of Venue or Continuance, State v. Kueng, Court File No. 27-CR-20-12953 (May 28, 2022); Notice of Motion and Motion for a Change of Venue or in the Alternative a Motion for Continuance, State v. Thao, Hennepin County District Court, Court File No. 27-CR-20-12949 (May 30, 2022); Mannix, Two former Minneapolis officers charged in George Floyd killing ask judge to delay, relocate trial, StarTribune (May 31, 2022).

[2] Ex-Officer Thomas Lane Pleads Guilty to State Charge of Aiding and Abetting Manslaughter of George Floyd, dwkcommentaries.com (May 18, 2022);

[3] Federal Criminal Trial for Killing of George Floyd: Jury Deliberations and Verdict, dwkcommentaries.com (Feb. 25, 2022).

[4] ‘Frontline’ teams up with StarTribune for documentary on Minneapolis police, StarTribune (May 31, 2022).

[5] State’s Opposition to a Change of Venue or a Continuance, State v. Kueng & Thao, Hennepin County District Court, Court File Nos. 27-Cr-20-12953 & 27-CR-20-12949 (May 30, 2022).

Ex-Officer Thomas Lane Pleads Guilty to State Charge of Aiding and Abetting Manslaughter of George Floyd   

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/

 

Federal Criminal Trial for Killing George Floyd: Closing Arguments

On February 22, 2022, the United States for the prosecution and the attorneys for the defendants Tou Thao, J. Alexander Kueng and Thomas Lane presented their closing arguments to the jury. [1]

The Charges Against the Defendants

Thao and Kueng are charged with failing to intervene on Floyd’s behalf while the two of them and Lane are charged with with failing to provide medical aid to Floyd while Derek Chauvin was using unreasonable force.

Prosecution’s Closing Argument

Assistant U.S. Attorney Manda Sertich emphasized the length of time that Mr. Floyd had suffered while the officers did not provide aid. They watched and listened, but did not help as Chauvin killed a man “in broad daylight on a public street.” They knew Floyd needed aid. They had been trained that every second counted to start life-saving procedures for an unresponsive man. They had the ability to help, but they didn’t.

Thao had “done nothing” for 4 minutes and 40 seconds as Floyd called out for help. Instead he “mocked” Floyd by telling bystanders that this is “why you don’t do drugs, kids.” During that same time, Kueng ignored Floyd’s pleas as he crouched “shoulder to shoulder” with Chauvin, never urging him to let up. Kueng also laughed when Chauvin said the dying man talked a lot for someone who said he couldn’t breathe. Lane, who was holding Floyd’s legs, had chosen “not to stop the horror unfolding under his nose, only suggesting that Chauvin roll Floyd onto his side, but  “doing nothing to give Floyd the medical aid he knew he so desperately needed.”

Even as Floyd said he could not breathe for a 27th time, the officers “were only halfway through their crime.”

The falsity of the defense is proved by ordinary citizen bystanders, including a nine-year old, who cried out for the officers to intervene. “These civilians didn’t have a badge. They didn’t have other officers who could back them up. They knew these officers had more power than they did, more authority than they did and could cause trouble for them. And they still insisted.”

“These defendants knew what was happening, and contrary to their training, contrary to common sense, contrary to basic human decency,” they “chose not to aid George Floyd, as the window into which Mr. Floyd’s life could have been saved slammed shut. This is a crime. The defendants are guilty as charged.”

Defendants’ Closing Arguments

The three defense counsel collectively argued that their clients had deferred to the judgment of Chauvin, the senior officer on the scene; that their attention had at times been diverted from Floyd’s deteriorating condition; and that restraining Floyd was necessary because he had taken fentanyl and earlier had refused to get into the back of a squad car after being accused of using a counterfeit $20 bill to buy a package of cigarette.

Defense counsel also argued that the prosecution had made misleading arguments and that this case had been brought because of political pressure.

Lane’s attorney noted that he had asked Chauvin if they should roll Floyd onto his side and thus had not been charged with failure to intervene. In addition, when paramedics had arrived, Lane told them that Floyd was unresponsive and then Lane rode with Floyd in the ambulance and applied chest compressions.

Kueng’s attorney said the crowd of bystanders had created an unusual and hostile situation.

Prosecution Rebuttal

Another Assistant U.S. Attorney, LeeAnn Bell, emphasized that the key to the case was a police officer’s duty: “In your custody, in your care.”

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[1] Mannix & Olson, In closing arguments at trial of three former Minneapolis officers, attorneys spar over ‘willful intent,’ StarTribune  (Feb. 22, 2022); Mannix, Defense of former officers puts Minneapolis ‘paramilitary’ training on trial, StarTribjne (Feb. 22, 2022); Barrett, Prosecutor Says Ex-Officers ‘Chose to Do Nothing’ in Floyd arrest, W.S.J. (Feb. 22, 2022);

Federal Criminal Trial for Killing George Floyd: Defendant Thomas Lane Testimony

On February 22, 2022, Defendant Thomas Lane took the witness stand to provide his testimony in defense of the charges that he illegally deprived George Floyd of his constitutional rights. The following is a summary of that testimony based on the cited newspaper articles. [1]

Lane’s Personal Background

Lane began by his life and background. He grew up in Arden Hills, Minnesota and attended Mounds View High School and earned an associate’s degree from Century College before attending the University of Minnesota and deciding to pursue a career in law enforcement.

He will be turning 39 in a couple of weeks. His wife and he are expecting their first child soon.

Lane’s Minneapolis Police Department Background

In February 2019 he was accepted by the MPD and completed his training in December of that year. The training taught them that in cases of excited delirium officers were to keep the person from “thrashing, hold them in place” until paramedics arrive to inject ketamine. Under cross examination, he admitted that they were trained if someone did not have a pulse to start CPR within 5 to 10 seconds with Lane’s qualifier “if the situation allows.”

During the first five months of 2020 he had been on about 120 calls as a probationary officer.

                              Lane’s Encounter with George Floyd

On May 25, 2020, Lane on his fourth shift as a full-fledged officer and fellow rookie officer, J. Alexander Kueng, were the first officers answering a call of alleged forgery in progress at Cup Foods in south Minneapolis.

After being told by someone at Cup that the suspect was outside in a car across the street, Lane went there and gave commands to the suspect (Floyd) and after he got out of the car, Lane handcuffed him. Soon thereafter Lane had Floyd sit on a sidewalk with his back against a wall and he did not try to get up or escape.

Later when Chauvin arrived and pinned Floyd on the ground with his knee, Lane held down Floyd’s legs and Kueng restrained his midsection. After about four minutes, Lane noticed that Floyd had stopped resisting and Lane said, “Should we roll him on his side?” But Chauvin said, “Nope, we’re good like this.” 

Later Lane said he didn’t always have a clear view of what Chauvin was doing, but that his knee “appeared to be just kind of holding [him] at the base of the neck and shoulder.” When he could not see Floyd’s face, Lane asked again to roll him over to “better  asses” his condition. Chauvin did not respond and instead asked if Lane and Kueng were OK.

Lane felt reassured when an ambulance arrived and a paramedic checked Floyd’s pulse while  retrieving a stretcher without urgency, leading Lane to believe that “Floyd’s all right.” 

Lane choked up and became teary as he described why he went in the ambulance to help the paramedics. “Just based on when Mr. Floyd was turned over, he didn’t look good, and I just felt like , the situation, he might need a hand.”

In the ambulance, Lane realized Floyd had gone into cardiac arrest. 

During cross examination, Lane agreed that “fear of negative repercussions , fear of angering a field training officer [like Chauvin] is not an exception to the duty to render aid.”

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[1] Olson & Mannix, After Lane takes stand, testimony concludes in the trial of three former Minneapolis police officers charged with abusing George Floyd’s civil rights, StarTribune (Feb. 21, 2022); Arango, Former Officers Finish Defense in Trial   Over George Floyd’s Death, N.Y. Times (Feb. 21, 2022); Bailey, Defense rests after testimony from former Minneapolis officer who said he tried to get Chauvin to reposition Floyd, Wash. Post (Feb. 21, 2022).

Federal Criminal Trial for Killing of George Floyd: Other Witnesses for Defendant J. Alexander Kueng

Federal Criminal Trial for Killing of George Floyd: Other Witnesses for Defendant J. Alexander Kueng  

A prior post reviewed the testimony of Defendant J. Alexander Kueng. Here are summaries of the other witnesses he put forward.1

Joni Kueng. The first witness for Kueng was his mother, Joni Kueng, who testified briefly that he had played the peacemaker among the family siblings.

Steve Ijames, a use-of-force instructor and a retired assistant police chief in Springfield, Missouri, as a defense expert, testified that MPD’s training on an officer’s duty to intervene to stop other officers from using excessive force was ineffective because it relied too heavily on lectures instead of hands-on training and testing to ensure that  trainees learned the right lessons. Indeed, such training must emphasize demonstrations and testing to ensure that the attendees absorbed the subject matter. “Just because you sat through a class doesn’t mean you learned anything.”

Ijames, however, testified that Chauvin’s continued force after Floyd stopped fighting was unreasonable “beyond question.” But according to Ijames, Kueng lacked the training and experience to recognize that inappropriate use of force and thus it made sense for Chauvin to defer to Chauvin. However, Ijames admitted that it was conceivable that Kueng could have walked around and checked Floyd’s neck without moving or disturbing Chauvin.

Gary Nelson, a retired MPD lieutenant and field training officer, testified that it made sense for the other officers to let Chauvin take charge of the scene, especially since Kuenig and Thomas Lane were rookies. “Somebody needs to be in charge” and there isn’t always time to deliberate.

However, under cross examination, Nelson agreed that officers are not obligated to follow clearly unlawful orders and that they are accountable for their actions and inactions.

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  1. Mannix & Olson, Kueng testifies of attempting to place Floyd in squad: “I felt like I had no control,’ StarTribune (Feb. 16, 2022); Karnowski & Webber, Prosecutors question officer in Floyd killing about training, AP News (Feb. 17, 2022); Mannix & Olson, Kueng says he didn’t see ‘serious medical need’ when George Floyd fell unresponsive, StarTribune (Feb. 17, 2022).