The joint trial scheduled for a pair of ex-Minneapolis police officers charged with aiding and abetting George Floyd's killing later this month will mark the latest proceeding after two and a half years in and out of state and federal courtrooms amid the nationwide reckoning in policing reignited by his death.
Attorneys argued 170 motions in Hennepin County District Court this week ahead of the trials for J. Alexander Kueng and Tou Thao, who are already serving federal sentences for violating Floyd's civil rights, but rejected a plea deal that offered them sentences to be served concurrently with their federal sentences. That would have negated the need for a trial.
Kueng and Thao waived their right to appear at hearings Thursday and Friday. Kueng, 29, is in custody at the Elkton, Ohio, federal prison and Thao, 36, remains at the federal medical center in Lexington, Kentucky. Their trial is slated for Oct. 24, starting with an anticipated two weeks of jury selection. Judge Peter Cahill expects the trial to wrap up by Dec. 16.
Thao's attorney Robert Paule suggested jury selection may be challenging because "every member of society ... has heard of this case" and has seen much of the evidence in Derek Chauvin's trial.
Witnesses will largely be a repeat of that trial and the federal trial, with a few exceptions like an aviation safety professor from Ohio State University who will draw parallels between pilots and officers on the "duty to intervene." Prosecutors opposed the witness.
Defense attorneys and prosecutors had a familiar debate over "excited delirium" expert testimony, which is a controversial diagnosis typically referring to a person experiencing a severe state of agitation. Cahill reiterated his skepticism over introducing it at trial.
In the federal trial of then-officers Thao, Kueng and Thomas Lane, the defense tried to argue that the officers were following their training when responding to Floyd on May 25, 2020. Lane — a rookie officer at the scene along with Kueng — was heard on body camera video saying he was "concerned about excited delirium or whatever."
Minneapolis police have been trained on the term and how to manage it as recently as last year, despite Mayor Jacob Frey saying it was no longer part of MPD training. The nation's largest professional physicians association declared it an overly broad term often misapplied to justify excessive police force or unneeded sedatives.
Floyd died after Chauvin knelt on his neck for more than nine minutes while Lane held his legs and Kueng knelt on his back. Thao prevented bystanders from intervening during the street corner confrontation in south Minneapolis.
Lane was sentenced Sept. 21 in Hennepin County District Court. He pleaded guilty in May to avoid this upcoming state trial and instead serve three years in prison for his role in Floyd's killing, but Kueng and Thao rejected the same offer. The two former officers could've served the sentence concurrently with their federal sentences of three years for Kueng and 3½ for Thao.
"It would be a lie and a sin for me to accept a plea deal," Thao said at the August hearing.
Chauvin was convicted in Hennepin County District Court last April and received a 22½-year state sentence in June for murder. He pleaded guilty to federal charges in December.
Thao and Kueng face two charges: aiding and abetting second-degree murder, and aiding and abetting manslaughter. If found guilty of both counts, they could receive at least 16 years in prison.
In hearings this week for the last remaining trial stemming from Floyd's killing, which sparked international protest over police brutality and racial justice, prosecutors moved to allow testimony from experts on the unreasonableness of the officers' use of force, which is the central issue in this case. They aim to "prove, beyond a reasonable doubt, that George Floyd did not die from a drug overdose, an enlarged heart, carbon monoxide, or whatever other mechanism of death defendants suggest to the jury," prosecutors argued in motions.
The state tried to prohibit jurors from seeing evidence from MPD training on fentanyl. Prosecutor Danielle Desaulniers Stempel said that Chauvin's attorney Eric Nelson used this to argue medical causation with the pills in Floyd's possession and allege that he ingested enough to kill him when toxicologists proved otherwise. Cahill denied the motion to limit this evidence.
Several use-of-force training experts will make a reappearance, like MPD Inspector Katie Blackwell, who runs MPD's training unit and told jurors in the federal trial that the former officers defied training when they helped restrain Floyd. But Paule showed slides on the department's excited delirium training that included videos and photos of other officers pinning down suspects with their knees.
Attorney Tom Plunkett pushed back on Blackwell's testimony, calling the field training "incompetent," but Cahill will allow her testimony to offer opinion based on experience and training. Plunkett argued that wasn't the same training Kueng and Lane received.
There will also be testimony of bystanders, who will not be allowed to say how witnessing Floyd's killing made them feel. The defense successfully asked the court to prohibit the state from asking questions of witnesses to illicit any emotional response.
"We're not calling these people for them to cry on the stand," said prosecutor Matthew Frank, adding that it was emotionally distressing and difficult to relive as a witness.
A girl who was 9 years old at the time of Floyd's death was among the crowd of bystanders lining the sidewalk and calling on the officers to help Floyd; she is again on the state witness list. Defense attorneys tried to ban her testimony.
"We don't need the jury to be held by the hand of a 9-year-old," Paule said. There is video from the girl's phone to show the jury what she saw, Paule said.
Prosecutor Nathaniel Zelinsky said the purpose of having the girl testify is to show that human beings witnessed what happened. If she could tell Floyd was in medical distress, Zelinsky said, the officers should've recognized that as well.
Cahill will allow the girl to testify, as well as former MPD Chief Medaria Arradondo. Prosecutors will be allowed to ask how he came to fire the officers the day after Floyd's killing, but they cannot mention any civil litigation or settlement with Floyd's family.