MINNEAPOLIS – Attorneys for three former Minneapolis police officers charged in George Floyd's death asked a judge Thursday 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, J. Kueng and Tou Thao is an about-face from their earlier request to have the trial publicly broadcast, and is opposed by prosecutors and news outlets including The Associated Press. Hennepin County Judge Peter Cahill said he would rule on the issue later.
Lane, Kueng and Thao are scheduled to stand 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 attorneys for Lane and Kueng now say “worldwide publicity” from televised coverage of Chauvin’s trial “crushed” their clients’ right to a fair trial. Attorneys Earl Gray and Tom Plunkett wrote that the public's access led some witnesses to decline to testify for the defense, noting that one witness in the Chauvin trial had 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, Robert Paule, said in court that he would join the other former officers' objections to audio-video coverage. None of the defendants attended the hearing.
Minnesota court rules usually ban cameras at criminal trials unless both sides agree to them. Cahill ordered the trials to be broadcast live 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.
Cahill said Thursday that issues surrounding the COVID-19 pandemic might change again before the March trial. But even without the pandemic, he said, physical space will be an issue and the court will be unable to accommodate many spectators. He also said security is a concern.
Cahill asked Plunkett which fact witnesses are refusing to testify and Plunkett objected to the question, saying it would be unfair for the defense to discuss trial strategy at this point. Cahill didn't order him to disclose the information, but he said the testimony of witnesses during Chauvin’s trial would have been reported regardless of the livestream.
The judge also said use-of-force expert Barry Brodd’s suggestion that Floyd could have been “resting comfortably” on the pavement “was the soundbite of the day.” Brodd was one defense expert who was harassed after Chauvin's trial.
Plunkett disagreed, saying the “call to action” is different for someone who is watching something live rather than reading a report.
Prosecutors initially opposed livestreaming Chauvin's trial but now say it was the right move — protecting everyone during the pandemic, allowing for meaningful public access and letting people watch the fair administration of the justice system.
They favor livestreaming the second trial as well, saying defense claims that audio-video coverage would deny them a fair trial are 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 the media coalition also say the court should allow audio-video coverage, arguing that even if the trial is not televised, witnesses will still face publicity and scrutiny because their names and the content of their testimony will be reported. The media attorneys also contend that barring cameras would mean the public couldn't fully monitor what was going on.
Leita Walker, a media attorney, said the media wants maximum transparency in all cases, “but especially this one that has the potential to tear the fabric of this community.” She said had Chauvin’s case ended with a different verdict, the livestream would have helped build public trust.
During the hearing, Gray dropped his earlier request that the state provide all use-of-force reports since July 2016 in which another officer intervened in force used by a colleague, because he is pursuing information from the city himself. An officer’s duty to intervene came up often during testimony in Chauvin’s trial.
Cahill also denied a defense request to rule that a potential expert witness for the state coerced Hennepin County Medical Examiner Dr. Andrew Baker to change his findings by noting that neck compression was a factor in Floyd's death. Paule said the state failed to take action after prosecutors learned former Washington, D.C., medical examiner Dr. Roger Mitchell threatened to write an op-ed critical of Baker's findings. The state ultimately did not call Mitchell as a witness in Chauvin's case.
“I'm not finding any coercion at all,” Cahill said, but he ordered the state to provide the defense with materials about their exchanges with Mitchell, and he said the defense could question Baker about any possible coercion during cross-examination at trial.
Cahill also denied a defense request to sanction the state after information about a plea deal for Chauvin — which was ultimately rejected by former U.S. Attorney William Barr — was leaked to The New York Times. Cahill said Thursday that he doesn't believe the state was the source of the leak. He quashed a defense subpoena to have state Attorney General Keith Ellison testify about it.
Chauvin has been sentenced to 22 ½ years in prison. All four former officers also face federal charges alleging that they violated Floyd’s civil rights.