The attorneys for four ex-Minneapolis police officers charged in the death of George Floyd are asking a judge to rescind a gag order issued last week prohibiting attorneys and others from discussing the case.
Eric Nelson, who represents Derek Chauvin, filed a motion Monday arguing that Hennepin County District Judge Peter Cahill’s gag order violates Chauvin’s state and federal constitutional rights to free speech and a public trial.
Attorneys Thomas Plunkett, Robert Paule and Earl Gray, who are representing the three other former officers charged in the case, also filed motions Monday to vacate the order.
“Given the global extent and tenor of pretrial publicity in this case, halting the flow of any information from Mr. Chauvin, through his counsel — before even a single statement has been made — to the public is more likely to prejudice the jury pool (to the extent that it has not already) than to prevent a taint,” Nelson wrote. “The Court’s order effectively allows the repeated and unmitigated condemnation of a criminal defendant by nonparty public officials and celebrities.”
Nelson also criticized the media, public officials and others for contributing to the “overwhelming pretrial publicity damning Mr. Chauvin.”
Cahill issued the order Thursday after Gray and Plunkett spoke to the Star Tribune about their clients.
“The court finds that continuing pretrial publicity in this case by the attorneys involved will increase the risk of tainting a potential jury pool and will impair all parties’ right to a fair trial,” Cahill wrote in his order, which covered “all parties, attorneys, their employees, agents or independent contractors working on their behalf.”
Chauvin is charged with second-degree murder, third-degree murder and second-degree manslaughter for planting his knee on the neck of Floyd, 46, for nearly eight minutes, leading to his death on May 25.
Chauvin’s former colleagues J. Alexander Kueng, Thomas Lane and Tou Thao are charged with aiding and abetting murder and manslaughter.
Gray filed a motion last week to dismiss the case against Lane, and said the court should allow the public to view two body camera videos he filed with the motion. Plunkett said he was considering a similar motion for Kueng.
Nelson and Paule did not comment.
Gray wrote in his Monday motion that he was trying to explain the motion and videos to media.
“Nothing defense counsel filed or said warrants this Court to issue a Gag Order,” Gray wrote.
The court did not make the body camera videos available for viewing when Gray filed his motion; it later announced that the videos would be publicly viewable at the courthouse on Wednesday.
Plunkett said in his motion that he was contacted by roughly a dozen media outlets about Gray’s motion, and that media reports were “incomplete and tainted” because the court did not make the videos immediately available.
“The public narrative is being driven by the Court’s denial of access to publicly filed exhibits which has caused a piecemeal release of information that unfairly portrays the evidence,” argued Plunkett.
Cahill’s order prohibited defense attorneys and the prosecution, which is being led by the Minnesota Attorney General’s Office with assistance from the Hennepin County Attorney’s Office, from divulging “opinions, strategies, plans or potential evidence” to the media or general public.
Nelson, Paule and Plunkett rebuked public officials including Attorney General Keith Ellison, Gov. Tim Walz, Minneapolis Mayor Jacob Frey and Minneapolis police Chief Medaria Arradondo and others for speaking publicly about the case before the judge issued the gag order.
“For more than a month, the press, popular figures, high ranking politicians, and the attorney leading this prosecution [Ellison] — as well as his councilman son — have all rendered their verdicts in this case and on the most public stages possible,” Nelson wrote. “And they have all deemed the Defendant guilty.”
Nelson argued that the judge inappropriately issued the order without citing legal authority or convening a hearing on the matter, depriving Chauvin of his constitutional right to due process.
Cahill cited a Minnesota court rule in issuing the order. Nelson, Paule and Plunkett argued that the rule required a motion and court hearing.
Plunkett also called for the immediate release of the body camera videos, accusing the court of withholding public data by “delay and limitation.”
Evidence submitted in court is public data under the Minnesota Data Practices Act.
Nelson noted that he has not spoken to the media about the case and that Chauvin should not be penalized for other attorneys’ actions. Paule also argued that his client’s case should not be affected by others’ statements.
“If anything, the gag order should apply only to the State and county prosecutors, who have enjoyed a lengthy, unrestricted media honeymoon, during which to comment and posit and discuss this case at length — likely in violation of their ethical duties,” Nelson wrote.
Gag orders are highly unusual in Minnesota, but have been used in the past.
Also on Monday, Ellison announced that he appointed four veteran attorneys as special assistant attorney generals on the Floyd case. The attorneys are working pro bono.
“Out of respect for Judge Cahill’s gag order, I will say simply that I’ve put together an exceptional team with experience and expertise across many disciplines,” Ellison said in a written statement.
The attorneys are Neal Katyal, former acting Solicitor General and former Principal Deputy Solicitor General of the United States; Lola Velázquez-Aguilu, an attorney at Medtronic and former prosecutor with the U.S. Attorney’s Office; Jerry Blackwell, a trial attorney who won the state’s first posthumous pardon for Max Mason, a Black man wrongly convicted of rape 100 years ago; and Steven L. Schleicher, a former prosecutor with the U.S. Attorney’s Office who led the successful prosecution of Jacob Wetterling’s kidnapper and killer.