Tag: Tou Thao

State Court Imposes Sentence of 57 Months Imprisonment on Tou Thao for Aiding Manslaughter of George Floyd

When George Floyd was killed on May 25, 2020, Tou Thao was a Minneapolis police officer who was in charge of monitoring and restraining the large nearby crowd of bystanders while observing fellow officers Derek Chauvin, Thomas Lane and Alexander Kueng physically restraining and killing George Floyd on the nearby pavement. On August 7, 2023, Thao was sentenced in state court to 57 months imprisonment for aiding and abetting second-degree manslaughter. The following is a summary of Minnesota state courts’ proceedings, convictions and sentencings of these four ex-Minneapolis police officers.

Prior State Court Proceedings[1]

The State of Minnesota charged Thao and the other three officers with various crimes for the killing of Mr. Floyd. The officer in charge, Derek Chauvin, was the first officer to go on trial in the Hennepin County District Court and a jury found him guilty of second- and third-degree murder and second-degree manslaughter and the court sentenced him to 22.5 years  imprisonment.

The Minnesota Court of Appeals then denied Chauvin’s appeal and the Minnesota Supreme Court declined to hear his further appeal. According to his attorney, Chauvin will petition the U.S. Supreme Court to review his case.

In Hennepin County District Court in May 2022, Officer Lane pleaded guilty to a charge of aiding and abetting second-degree manslaughter and was sentenced to 2.5 years imprisonment.

In October 2022, also in Hennepin County District Court, Kueng pleaded guilty to aiding and abetting manslaughter  and was sentenced to three years imprisonment.

Thao, however, rejected a proposed guilty plea and instead chose to have Judge Cahill try him on stipulated evidence.

District Court’s Conviction of Thao[2] 

 On May 1, 2023, District Court Judge Peter Cahill issued the Court’s 177-page Verdict, Findings of Fact, Conclusions of Law and Memorandum Opinion. In finding Thao guilty of aiding and abetting second-degree manslaughter of George Floyd, the Verdict stated:

  • “Thao actively encouraged his three colleagues’ 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.”
  • That night Thao “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.”

District Court’s Sentencing of Thao[3]

On August 3, 2023, Minnesota Assistant Attorney General  Erin Eldridge submitted a three-page letter to the Court noting that the presumptive sentence for this crime for Thao was 48 months with a guideline range of 41 to 57 months and that the State requested the imposition of a 51 month sentence for the following reasons:

  • “Thao’s conduct was calculated, deliberate, and directly facilitated and perpetuated the restraint that led to Floyd’s death. Throughout the encounter, Thao was aware of Floyd’s distress and the dangerousness of the ongoing prone restraint. Thao discouraged the officers from using a hobble—a device that, if properly utilized, would have saved Floyd’s life. . . . Instead, Thao actively encouraged his fellow officers to continue to restrain Floyd prone on the ground. . . . . . Thao also ‘expressly refused to allow’ ‘a trained Minneapolis firefighter’ ‘to tend to Floyd, . . . despite Floyd’s obvious distress. . . . In short, Thao bears personal responsibility for what happened that day. This Court should impose a punishment that reflects Thao’s culpability.”
  • “Thao’s conduct was even more egregious in light of his extensive experience and training. Thao completed the police academy in 2009, and became a full-time officer in 2012, serving in that capacity for 8 years. …. Over the course of his multi-year career, Thao completed 1,014 hours of MPD training, including medical training, defensive tactics training, procedural justice training, and crisis intervention training. . . . .Above all, Thao had been trained about the importance of placing individuals in the side recovery position to alleviate the risk of positional asphyxia. . . . Yet despite his extensive on-the-job experience and copious training, Thao intentionally encouraged the use of a dangerous prone restraint, discouraged the use of a hobble, and prevented an off-duty firefighter from rendering aid. In short, Thao knew better, but did not do better.”
  • “Thao acted callously and cruelly. Thao mocked Floyd, telling the concerned bystanders: ‘This is why you don’t do drugs, kids.’ . . . . Thao dismissed Floyd’s pleas: ‘He’s talking, so he’s fine.’ . . . And Thao encouraged the dangerous behavior for selfish reasons: In Thao’s words, if the officers used a hobble, ‘a sergeant’s going to have to come [to the scene].’ ….This Court put it best: ‘Tou Thao did not want to follow the proper protocol and the work it would entail. George Floyd died as a result.’ . . . . “
  • “[A] a significant term of incarceration would serve as a deterrent for similar misconduct. Police officers enforce the law; they are not above the law. A 51-month prison sentence will discourage other public servants from engaging in similar criminal behavior or abuses of authority.”
  • “Thao has neither accepted responsibility nor shown any remorse for his actions”

At the August 7 sentencing hearing, Mr. Eldridge said, “George Floyd’s last words were heard around the world,  but more importantly they were heard by Tou Thao and we cannot forget them now three years later.”

Mr. Thao’s attorney, Robert Paule, said at the hearing, “The death of Mr. Floyd is a tragedy, but the court is a place of justice, not retribution. Mr. Thao went out that day with the purest intentions. My client is a good and decent man with a family.” Paule then requested a sentence of 47 months, which was 10 months less than the maximum of the sentencing guidelines.

Mr. Thao then spoke for about 23 minutes to say, “Hold on to the truth that I did not commit these crimes; my conscience is clear. I will not be a Judas nor join a mob in self-preservation or betray my God. I did not intend on hurting anyone that day. I did the best I thought I could. Obviously the outcome didn’t come out the way I wanted it. I’ll leave it at that” without any apology. He then quoted Biblical passages and preached of repentance, fear of God and forgiveness. “Today if you feel the love of God pulling at your heart. . . . Let it be your day of salvation. Do not harden your heart in rebellion, for God desired mercy and relationship with you.”

Thao then directly asked Judge Cahill if he was a brother in Christ and apologized if he had offended the Judge by refusing to take a guilty plea deal and having said, “it would be a lie and a sin for me to accept a plea deal.” The Judge then said no offense was taken.

Thao closed by saying that he is praying for everyone in the room, including the Judge, and that if anyone needs him for prayer, “you know where to find me. Thank you judge. God bless you.”

Judge Cahill then said, “After three years of reflection, I was hoping for a little more remorse, regret, acknowledgement of some responsibility and less preaching.” The Judge added that he would not rehash the facts of the case, but that Thao’s “culpability is less than Mr. Chauvin, but well above Mr. Kueng and Mr. Lane as an experienced senior officer who was in the best position to save George Floyd.” Therefore, a sentence of 57 months was appropriate.

This sentence will be served in Minnesota state prison, to which he will be transferred from federal prison where he already is serving his federal sentence of 42 months for violations of Floyd’s civil rights with the balance of that federal sentence to be served concurrently with the state sentence. [4]

Conclusion

After the hearing, Thao’s attorney said he would appeal the guilty verdict and the sentence.

=========================

[1] See, e.g., List of Posts to dwkcommentaries—Topical: George Floyd Killing.

[2] Tou Thao, ex-MPD Officer, Convicted for Aiding and Abetting Second-Degree Manslaughter of George Floyd, dwkcommentaries.com (May 3, 2023); Briefs in Tou Thao’s State Court Criminal Case Over Killing of George Floyd, dwkcommentaries.com (Feb. 2, 2023);

[3] Hyatt, Ex-Minneapolis cop Tou Thao sentenced to nearly 5 years for aiding George Floyd’s killing, StarTribune (Aug. 7, 2023); Karnowski, Ex-Minneapolis officer unrepentant as he gets nearly 5 years in George Floyd killing, AP News (Aug. 7, 2023); Betts, Former Officer Gets More than 4 Years in Final Sentencing for Police Killing of George Floyd, N.Y. Times (Aug. 7, 2023). Bailey, Ex-Minneapolis officer gets second sentence in George Floyd’s death, Wash. Post (Aug. 7, 2023); Helmore, Ex-officer sentenced to nearly five years for role in George Floyd’s murder, Guardian (Aug. 7, 2023); Letter, Minnesota Assistant Attorney General Erin R. Eldridge to Judge Peter Cahill (Aug. 3, 2023).

[4] Tou and the other three ex-MPD officers were also sued in federal court for alleged violations of Mr. Floyd’s civil rights. All four of them were convicted and sentenced to federal imprisonment. (E.g., U.S. Court of Appeals Affirms Federal Conviction of Tou Thao for Violating the Civil Rights of George Floyd, dwkcommentaries.com (Aug. 5, 2023).) https://www.startribune.com/tou-thao-sentenced-nearly-5-years-aiding-george-floyds-killing/600295391/?refresh=true

U.S. Court of Appeals Affirms Federal Conviction of Tou Thao for Violating the Civil Rights of George Floyd

On August 4, 2023, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit unanimously affirmed the conviction of Tou Thao by the U.S. District Court for the District of Minnesota for violating the civil rights of George Floyd during the 2020 murder of George Floyd by Derek Chauvin.[1]

The appellate opinion by Circuit Judge Jonathan Kobes, which was joined by Circuit Judges James Loken and Ralph Erickson, agreed with District Court Judge Paul Magnuson, after trial, that prosecutors had supplied sufficient evidence to support convictions on two counts of depriving Floyd’s rights under color of law — charges that Thao failed to intervene in Derek Chauvin’s use of unreasonable force and that Thao was “deliberately indifferent to Floyd’s medical needs.”

The Eighth Circuit also held that although evidence of Thao’s deliberate indifference was “not overwhelming,” a reasonable jury could find that Thao acted willfully, based on his knowledge and training, by failing to give Floyd medical aid.

The appellate opinion also rejected Thao’s argument that he was innocent because Floyd arguably was  experiencing excited delirium since under MPD policy, neck restraints are inappropriate once the detainee stops resisting, even when a detainee is experiencing excited delirium.

Therefore, the Eighth Circuit concluded that “there was sufficient evidence for the jury to find that Thao acted willfully on both [section] 242 counts and that any prosecutorial misconduct did not deprive Thao of his right to a fair trial.” Thus, the district court was affirmed.

Afterwards Thao’s attorney, Robert Paule, said, “I have the utmost respect for the court but I vehemently disagree with this decision and Mr. Thao will continue to pursue every possible avenue for relief in this case.” The only possible ways for seeking such relief are asking the Eighth Circuit en banc to review the case or to petition the U.S. Supreme Court for such review. In this blogger’s opinion, both of these options would be unsuccessful.

===========================

[1] Montemayor, Appeals court affirms federal conviction of Tou Thao in George Floyd’s killing, StarTribune (Aug. 4, 2023); Opinion, U.S. Court of Appeals for Eighth Circuit, U.S. v. Thao, Case No. 22-2201 (Aug. 4, 2023).

The District Court had tried together three of the ex-MPD officers (Thao, Lane and Kueng), and on February 24, 2022, the jury returned a verdict that all three were guilty of all charges. (Federal Criminal Trial for Killing of George Floyd: Jury Deliberations and Verdict, dwkcommentaries.com (Feb. 25, 2022).)  Then on July 27, 2022, District Judge Paul Magnusson sentenced Thao to 3 ½ years imprisonment, Kueng to three years imprisonment and Lane to 2 ½ years imprisonment followed by two years of supervised release. (Completion of Federal Criminal Cases Over Killing of George Floyd, dwkcommentaries.com (July 27, 2022).)

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.

==============================

 

[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 2nd-degree manslaughter in murder of George Floyd (May 1, 2023).  This document included a similar statement by Hennepin County Attorney Mary Moriarty.

 

Briefs in Tou Thao’s State Court Criminal Case Over Killing of George Floyd 

October 24, 2022, was the scheduled date for starting the state criminal trial of  former Minneapolis Police officers Tou Thao and J. Alexander Kueng  for the killing of George Floyd. Instead that day Thao told Hennepin County District Court Judge Peter Cahill that he was giving up his right to a jury trial and agreeing instead to a trial only on the aiding and abetting the second-degree manslaughter charge by stipulated evidence. (That same day Kueng and the prosecution announced to the Court that they had negotiated an agreement for a guilty plea by Kueng.) [1]

Thus, January 30, 2023, marked the filing of the parties’ briefs in the Thao state criminal case. [2]

Thao’s Brief

Thao’s attorney argued that Thao is innocent of criminal wrongdoing and should be acquitted on state charges of aiding and abetting murder and manslaughter. This is the necessary conclusion from the state’s failing to prove beyond a reasonable doubt that Thao knew that Chauvin was committing a crime or that Thao intended to aid in a crime.

Thao “reasonably believed” that Floyd was experiencing a controversial set of symptoms known as “excited delirium” and that the actions he took at the scene were with the intention of helping to get Floyd medical attention faster because he was trained to view excited delirium as life threatening.. Every one of Thao’s actions was done based upon the training he received from the Minneapolis Police Department.

Based on his training and experience, “Thao reasonable believed that Floyd could be experiencing excited delirium and that Chauvin was acting within the bounds of hi legal authority because MPD repeatedly had trained its officers to do just that. In addition, Thao acted repeatedly and intentionally to get [Floyd] the proper medical attention

Thao acknowledged he heard onlookers becoming more anxious about Floyd’s condition and calling on officers to check his pulse. But he said his role was control of the crowd of about 15 bystanders. While he acknowledged hearing Floyd saying, “I can’t breathe,” he said he didn’t know there was anything seriously wrong with him even as an ambulance took him away.

Prosecution’s Brief

Prosecutors argued in their brief that Thao “acted without courage and displayed no compassion” despite his nearly nine years of experience and that he disregarded his training even though he could see Floyd’s life slowly ebbing away.

 Prosecutor Matthew Frank disputed the excited delirium defense, writing that even witnesses who believe excited delirium exists testified previously that Floyd displayed none of the symptoms.

“Thao was aware that his three colleagues were on top of Floyd, and were restraining Floyd in the prone position. Thao knew that this prone restraint was extremely dangerous because it can cause asphyxia — the inability to breathe — the exact condition from which Floyd repeatedly complained he was suffering. Yet Thao made the conscious decision to aid that dangerous restraint by  actively encouraging the other three officers, and assisting their crime by holding back concerned bystanders.”

Conclusion

Cahill has 90 days to rule and hand down a sentence if he finds Thao guilty. He’ll base his decision on evidence agreed to by both sides — exhibits and transcripts from Chauvin’s 2021 murder trial in state court and the federal civil rights trial of Thao, Kueng and Thomas Lane last year. Thao was specifically convicted then of depriving Floyd of his right to medical care and of failing to intervene and stop Chauvin.

If Thao is convicted of aiding and abetting manslaughter, Minnesota guidelines recommend four years on the manslaughter count. He would serve his state term concurrent with his federal sentence.

====================================

[1]  Kueng and State Agree on Guilty Plea while Thao Agrees to Judge Cahill’s Deciding His Case on Existing Record, dwkcommentaries.com (Oct. 24, 2022).

[2] Karnowski, Fate of last ex-cop charged in Floyd murder, AP News (Feb. 1. 2023); State’s Closing Argument, State v. Thao, Court File No. 27-
CR-20,12949, Henn. County Dist. Ct. (Jan. 31, 2023); Defendant Thao’s Closing Argument, Court File No. 27-CR-20,12949, Henn. County Dist. Ct. (Jan. 31, 2023).

 

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

Today, October 24th was to be the start of the state court criminal trial with jury selection for J. Alexander Kueng and Tou Thao on charges of aiding and abetting the manslaughter and murder of George Floyd.[1]

Instead today the selection of a jury for that trial did not happen when Kueng and the prosecution announced an agreement for his pleading guilty to aiding and abetting the second-degree manslaughter of Mr. Floyd and a prison sentence of three and a half years. Kueng’s attorney, Thomas Plunkett, said that the negotiated settlement included dismissal of a second count of aiding and abetting second-degree unintentional murder and Kueng’s state sentence will be served concurrently with the federal sentence for three years he’s serving at the federal prison in Elkton, Ohio.[2]

After that announcement, co-defendant Tou Thao told District Judge Peter Cahill that he was giving up his right to a jury trial and agreeing instead to a trial only on the aiding and abetting the second-degree manslaughter charge by stipulated evidence. Thao’s attorney, Robert Paule, said that means Cahill will review the evidence and issue a verdict within 90 days and that if the decision is guilty there will be a sentence of three to five years. By November 17th the parties will advise the court of the evidence to be considered and written closing arguments with the Judge to render his decision within the following 90 days.

=============================

[1] E.g., Preparations for State Criminal Trial of Kueng and Thou Over Killing of George Floyd, dwkcommentaries.com (Oct. 13, 2022).

[2] Hyatt, Kueng pleads guilty to state charges in George Floyd killing, while Thao agrees to let judge decide his case, StarTribune (Oct. 24, 2022); Forliti, Ex-Minneapolis cop pleads guilty in George Floyd killing, AP News (Oct. 24, 2022); Bogel-Burroughs, Officer Pleads Guilty to Manslaughter in George Floyd’s Death, N.Y. Times (Oct. 22, 2022).

Preparations for State Criminal Trial of Kueng and Thao Over Killing of George Floyd     

On October 13, Hennepin County District Court Judge Peter Cahill entered an Amended Trial Management Order for the upcoming trial of J. Alexander Kueng and Tou Thao, former Minneapolis police officers, who face charges of aiding and abetting two crimes: (a) second-degree murder and (b) manslaughter  of George Floyd.[1]

Latest Trial Management Order

This Order provided great details on the following:

  • Trial Courtroom (No. 1856), the largest trial courtroom with maximal flexibility, in the Hennepin County Government Center (para. 1);
  • the Media Overflow Courtroom (No. C-2350) (para. 2);
  • the General Public Overflow Courtroom (No. 1659) (para. 3);
  • Court Administration discretion to combine overflow (para. 4);
  • Parties’ Work Rooms (para. 5);
  • Jury Anonymity (para. 6);
  • Clothing/Logos (para. 7), which bans all persons in attendance from “wearing any mask or article of clothing that contains any outwardly-visible image, logo, or letters, or is otherwise dressed in a coordinated fashion with other attending observers in any manner which . . . is designed to send a message to the jury hearing this trial;”
  • “All earlier administrative and trial management and decorum orders addressing other trial logistics and management-related matters . . . remain in effect, except as and only to the extent expressly superseded by this Order (para. 8); and
  • “All other rules of decorum found in Minn. Gen. R. Prac.2 will be followed unless specifically modified by this order or other orders of the presiding judge. The HCSO and court staff are authorized to enforce the rules of decorum” (Para. 9).

The trial is scheduled to start on October 24 with jury selection followed by opening statements on November 7. The trial testimony and closing arguments are expected to end by December 16th, when the jury is anticipated to commence its deliberations.

Pretrial Motions

Judge Cahill, however, has not yet released his rulings on the defendants’ 170 pretrial motions that were argued before the court on October 6 and 7.[2]

=============================

[1] Amended Trial Management Order, State v. Thao & Kueng, (Oct. 13, 2022).

[2] Hyatt, Litany of motions heard ahead of ex-MPD officers’ trial this month for George Floyd’s killing, StarTribune (Oct. 7, 2022); Forliti, State, cops seek to bar evidence in trial over Floyd killing, AP News (Oct. 5, 2022)..

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 24th 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.”

===================

[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).

 

 

 

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.”

======================================

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.

===============================

[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).

 

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.

==========================

[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).