Prosecutors in the death of George Floyd have asked the court to take the extraordinary step of withholding all case filings from public view for at least two days, including the most recent defense filing that detailed his 2019 arrest.
Hennepin County District Judge Peter Cahill scheduled a hearing at 12:30 p.m. Thursday to hear arguments about the prosecution’s request. A media coalition, including the Star Tribune, opposes the motion. Multiple legal analysts described both motions as general pretrial jockeying, but said the prosecution’s request to seal documents interferes with the public’s right to access court proceedings.
At issue was a motion filed Monday by Earl Gray on behalf of his client, former Minneapolis police officer Thomas Lane, who held down Floyd’s legs when he was arrested May 25 and died in police custody. Gray wants to include video from an incident on May 6, 2019, when Floyd was a passenger in a vehicle that had been stopped by the Minneapolis police.
According to Gray’s memo, three police officers were working to get Floyd to respond to commands to show his hands, stop moving around and spit out something he had put in his mouth. Floyd cried out for his “mama” and told police, “Don’t shoot me, man,” according to the memo. The behavior was strikingly similar to Floyd’s behavior during the arrest that resulted in his death a year later.
The Star Tribune obtained the filing because it’s a party in an ongoing dispute over what documents are public in the case. Gray’s filing was not released to the public nor did it appear on the public website for the case as of Tuesday, although several prosecution motions filed Monday are listed.
Instead, Gray’s motion and the body camera footage from the 2019 arrest remain under seal, apparently because prosecutors filed a motion seeking to bar the immediate release of documents in the case.
Prosecutor Matthew Frank seeks to suppress all motions and exhibits in the case from public view for at least two days. “This will permit the parties to review those filings before they are made available to the public and, if necessary, to notify the Court within two business days of their intent to oppose public disclosure,” he wrote.
If the parties oppose public release of the documents, they can request to file briefs and hold arguments on withholding them, Frank wrote. This would ensure that “potentially confidential, prejudicial, or inadmissible information is not improperly or prematurely released,” he said.
Mitchell Hamline School of Law Prof. Raleigh Hannah Levine, who specializes in First Amendment issues, said such an arrangement would delay public access to the documents well beyond two days. She said the U.S. Supreme Court heavily supports public access to pretrial activity.
“It is a rare case in which the value of public access will not outweigh privacy or other concerns,” Levine said. Motions such as Frank’s “largely don’t succeed at the higher court,” she added.
Retired Hennepin County Judge Kevin Burke agreed, saying the pretrial documents should be public.
“The difficulty with some lawyers is they believe in transparency at their own news conferences, but after that, forget it,” Burke said.
He described both the prosecution and Gray’s motion as routine pretrial maneuvering, laying the framework of their cases.
Burke said there was no rush for Cahill to rule on whether to allow the evidence at trial of Floyd’s behavior in his 2019 arrest. Judges have broad discretion on such evidentiary matters and Cahill can decide later, Burke said.
Gray argued in his latest motion that Floyd’s behavior in the 2019 encounter is relevant to his client’s defense because prosecutors have presented a “false narrative” by portraying Floyd as a “law-abiding citizen that was afraid for his life.”
Instead, Gray said, Floyd’s behavior in the earlier arrest is “almost an exact replica” of how he behaved during his fatal encounter with police a year later outside Cup Foods in south Minneapolis. The defense lawyer noted that Floyd cried, mumbled and yelled throughout his interview with the police and claimed that’s how he behaves under “the influence of a pill.”
The only difference between the fatal 2020 incident and the earlier arrest, Gray wrote, is “Floyd complied when getting into the squad car on May 6, 2019.”
Gray is seeking dismissal of the charges against his client, Lane, who is charged with aiding and abetting murder and manslaughter. Former officers J. Alexander Kueng and Tou Thao face the same charges, while former officer Derek Chauvin, who knelt on Floyd’s neck, is charged with second-degree unintentional murder, third-degree murder and second-degree manslaughter.