Hearing in Floyd death to debate broadcast of ex-cops’ trial

Published 8:07 am Thursday, September 2, 2021

MINNEAPOLIS — Attorneys for two former Minneapolis police officers charged in George Floyd’s death are asking a judge to bar their upcoming trial from being livestreamed, saying some witnesses won’t testify if the proceedings are broadcast.

The request from attorneys for Thomas Lane and J. Kueng is an about-face from their earlier request to have the trial publicly broadcast, and it’s opposed by prosecutors and news media outlets including The Associated Press. It’s among a few legal issues expected to be argued at a Thursday hearing before Judge Peter Cahill.

Lane, Kueng and Tou Thao are scheduled for trial next March on charges of aiding and abetting both second-degree murder and manslaughter in Floyd’s May 2020 death. Their co-defendant, Derek Chauvin, was convicted in April of murder and manslaughter after weeks of proceedings that marked the first time in Minnesota that a criminal trial was livestreamed in its entirety.

Before Chauvin’s trial, attorneys for all four men requested the trials be broadcast, but now attorneys for Lane and Kueng say in nearly identical motions that the “worldwide publicity” from televised coverage of Chauvin’s trail “crushed” their clients’ right to a fair trial. Attorneys Earl Gray and Tom Plunkett say the public access led some witnesses to decline testifying for the defense, noting one witness in the Chauvin trial has been harassed and another faced professional scrutiny.

“Cameras in the Chauvin Courtroom brought us to the dangerous pass where people are deterred from testifying for the defense because they fear the wrath of the crowd,” they wrote.

Thao’s attorney hasn’t said whether his client still wants the trial broadcast.

Minnesota court rules usually ban cameras at criminal trials unless both sides agree to them. Cahill ordered the trials to be broadcast live, over the initial objections of prosecutors, because of the intense global interest in the case and limited courthouse space due to the pandemic. The livestreaming was widely praised and has led the state to consider expanding its rules for broadcasting future court proceedings.

Prosecutors initially opposed livestreaming Chauvin’s trial but now say it was the right move — protecting everyone involved during the pandemic, allowing for meaningful public access and letting people to watch the fair administration of the justice system.

They favor livestreaming the second trial as well, saying defense claims that audio-video coverage will deny them a fair trial is unconvincing. They say there is no concrete evidence that any witnesses are refusing to testify for the defense — and if that is the case, reluctant witnesses can be compelled to appear.

“Indeed, if Defendants have difficulty finding expert witnesses — and there is no evidence that they cannot secure experts — that difficulty is a product of their overwhelming guilt,” prosecutors wrote.

Attorneys for a media coalition also say the court should allow audio-video coverage, saying even if the trial is not televised, witnesses will still face publicity and scrutiny because their names and content of their testimony will be reported. The media coalition argued that some witnesses aren’t worried about a livestream but just don’t want to be associated with the defendants.

The media attorneys also argue that barring cameras will mean the public can’t fully monitor what’s going on.

Brock Hunter, a Minnesota defense attorney, said barring cameras won’t protect witness identities because “whether on stream testifying or just quoted in the news, they are going to be publicly identified and face potential backlash.”

Another motion that will be argued on Thursday is Gray’s request that the state provide all use of force reports since July 2016 in which another officer intervened in force used by a colleague. An officer’s duty to intervene came up often during testimony in Chauvin’s trial.

The state says it shouldn’t have to provide such evidence because Gray can get it on his own from the city of Minneapolis and it’s unlikely such evidence could be used at trial.

Attorneys are also expected to argue about a defense motion that alleges a potential expert witness for the state coerced the testimony of Hennepin County Medical Examiner Dr. Andrew Baker, something the state denies. The court is also expected to address a defense request for sanctions after the New York Times reported that Chauvin had been prepared to plead guilty days after Floyd’s death. Numerous attorneys from the Attorney General’s Office and the Hennepin County Attorney’s Office have filed affidavits stating they weren’t the source of the leaked information.

Chauvin has been sentenced to 22½ years in prison. All four former officers also face federal charges that they violated Floyd’s civil rights.