The judge overseeing the criminal cases against four ex-police officers charged in the May 25 killing of George Floyd vacated his previous gag order Tuesday that restricted comments by lawyers and others associated with the cases.
Hennepin County District Judge Peter Cahill acted in response to objections to the gag order by the defendants and a coalition of news media organizations, including the Star Tribune, that are also seeking the release of body camera footage recorded during Floyd's deadly encounter with police. Cahill did not rule Tuesday on motions seeking the release of the videos, which are currently viewable by the public only by appointment.
Cahill also rejected a defense request that he sanction the Minnesota attorney general's office for violating the gag order. Assistant Attorney General Matthew Frank, in a brief filed Tuesday before the motions hearing, called the request for sanctions a ploy to smear prosecutors.
Cahill lifted the gag order moments into Tuesday's 50-minute hearing after briefly polling all parties on whether anyone agreed that the order should stay in place. No one raised a hand. Cahill noted that his order could have been more narrowly drawn and agreed with defense arguments that restricting defendants from talking unfairly kept them from responding to negative publicity.
"Finally, and most importantly, the gag order didn't work," Cahill said, adding that "if anything it may have exacerbated the issue" by causing parties to "tiptoe" around in their public statements while leading the news media to rely on anonymous sourcing.
The four defendants in the case are Derek Chauvin, charged with second-degree murder and manslaughter, and Tou Thao, J. Alexander Kueng and Thomas Lane, who are charged with aiding and abetting him. Chauvin is still in custody at the state prison at Oak Park Heights and appeared via Zoom teleconference for Tuesday's hearing. The other three men appeared in court alongside their attorneys and sat spaced apart while wearing face coverings. None of the defendants spoke in the courtroom.
Much of Tuesday's hearing centered on motions from defense attorneys and a media coalition, which besides the Star Tribune includes Minnesota Public Radio, the Associated Press, local TV stations WCCO, KMSP, KARE and KSTP, and the New York Times Co. The media outlets are seeking immediate release of two videos recorded by Lane's body camera during the officers' encounter with Floyd.
Lane's attorney, Earl Gray, filed the videos earlier this month as evidence supporting his motion to dismiss charges against Lane. Under state law, the filing made the videos public data.
At present, the videos can only be viewed by appointment at the Hennepin County Government Center, which the media coalition's motion argues violates state laws governing access to public records, court rules and the First Amendment of the U.S. Constitution. Attorney Thomas Plunkett, who represents Kueng, is also seeking broad release of the footage.
Leita Walker, an attorney for the media coalition, told Cahill that the public already has access to the bystander videos, as well as transcripts of the videos that she said contained inconsistencies. Cahill expressed concerns about limiting pretrial publicity that could taint a potential jury pool, at times asking the parties for input on how he can mitigate such publicity in a case that has garnered intense international attention.
"I completely fail to see how letting them see the full picture, including the official video taken by the police officers that are now on trial, moves the needle, your honor," Walker said.
Speaking after the hearing, Walker added: "The media can only report the full story if it can see everything and talk to both sides."
Gray, who first filed the videos in his motion to dismiss charges against Lane, argued Tuesday that articles in the Star Tribune have been "substantially unfair" to his client, including one that carried the headline: "Body camera: Cop draws gun at start."
Gray said the video actually showed that Floyd was "stuffing counterfeit bills down his seat before he showed his hands." He alleged that Floyd also had "swallowed drugs" as Lane approached the vehicle.
"It's probably one of the main reasons he died," Gray added. "It's from the fentanyl overdose and that is not out there because we can't get the full video to the public."
Frank responded that Gray was attempting to "try the case through the media" and that his account was a "misleading version of what the facts are."
Though Cahill has declined to allow video and audio recordings of the pretrial hearings in the case, he continues to mull whether to allow live broadcasting of the trial itself, scheduled to begin March 8. All four defense attorneys say they want the trial to be broadcast and Cahill on Tuesday gave Frank less than a week to file a brief outlining the state's position. Cahill noted that live coverage of the trial could allow for public access at a time in which social distancing measures limit how many people can be in a courtroom during the COVID-19 pandemic.