The state trial of two fired Minneapolis police officers charged in connection with the death of George Floyd two years ago has been delayed from next week until January.
With the additional seven months — by then 2 ½ years after Floyd's murder — the trial will now come after Tou Thao and J. Alexander Kueng are sentenced for federal civil rights convictions stemming from the Black man's death under the knee of co-defendant Derek Chauvin in May 2020. The delay also gives the officers more time to consider pleading guilty to the state charges, as fellow fired officer Thomas Lane did last month.
The cases against Thao and Kueng have been rescheduled for a joint trial on Jan. 5, with jury selection set for Jan. 9 and opening statements on Jan. 30, Hennepin County District Judge Peter Cahill ruled Monday. Jury selection in the case was set to begin June 14. Opening statements were slated for July 5.
Cahill denied a defense request for a change of venue due to pretrial publicity. Cahill wrote that Floyd's death and subsequent events "have had saturation news coverage" in the state and nationally, and the defendants "have not developed ... any firm basis upon which this court might conclude there exist other counties in this state that have been less impacted by the pervasive, saturation publicity George Floyd's death on May 25, 2020, and these cases have received."
Kueng and Thao are charged with aiding and abetting second-degree murder and manslaughter in Floyd's death. Co-defendant Thomas Lane accepted a plea deal last month, meaning he will avoid the state trial. He agreed to a sentence of three years. Lane's attorney, Earl Gray, said "we intend to maintain our guilty plea" regardless of the trial's delay.
Kueng, Lane and Thao were convicted in federal court in February of violating Floyd's civil rights and causing his death. They have not yet been sentenced for that conviction. In court last Tuesday, the defense attorneys said they believe the sentencing won't take place until late summer.
Cahill's order nodded to the pending sentences in federal court and left many months of time for either of them to plead guilty. The judge said he will accept no plea agreements reached by the County Attorney's Office and either defendant until after their federal court sentencings.
The terms of the federal sentencings could affect the thinking of prosecutors or the defense about whether to reach a plea agreement in state court.
Fellow fired officer Derek Chauvin still awaits sentencing for the federal convictions, which come on top of the 221⁄2 years in prison he's serving for murder and manslaughter convictions in state court for Floyd's killing.
The government is recommending a 25-year sentence for Chauvin. He would serve the sentence concurrently with his state sentence, and in a federal prison, under recommendations in the plea agreement.
Cahill cited the defendants' rights to a fair trial for his order to push back their trial by seven months. Lane's recent guilty plea in state court and a federal jury's conviction of Thao, Kueng and Lane of violating Floyd's civil rights
"and the publicity surrounding them are significant in [that] it could make it more difficult for jurors to presume Thao and Kueng innocent of the state charges," the judge wrote. He added that the delay should "diminish the impact of this publicity on the defendants' right and ability to receive a fair trial from an impartial and unbiased jury."
Attorney General Keith Ellison, whose office has been leading the prosecution of all four officers charged in Floyd's death, declined to be interviewed but released a statement that read: "It's unfortunate for the victims, the witnesses, and community that the opportunity to seek justice has been delayed. The state was ready for trial next week and will be ready next January."
Thao's attorney, Robert Paule, declined to comment about Cahill's order other than to say, "It was a thoughtful and well reasoned decision by Judge Cahill." Kueng's attorney, Thomas Plunkett, has yet to comment about Monday's rulings.
Longtime Twin Cities criminal defense attorney Bruce Rivers, who is not involved in the officers' cases, sees nothing out of the ordinary for a state judge to delay a trial out of deference to a federal sentencing for the same charged offense. "We do this all the time," Rivers said.
Cahill's order "makes sense," Rivers continued. "If they get a harsh federal sentence, then what will happen is they are more likely to make a plea deal [in state court]."
Another veteran Twin Cities attorney, Jeff Montpetit, said, "Judge Cahill — and this is probably true for the defense — they want to know what the federal sentence is going to be ... so they can clearly examine their options and whether that would lend itself to a plea agreement."
Rick Petry, adjunct professor at the Mitchell Hamline School of Law in St. Paul, said Cahill deciding to push the trial into 2023 is on solid legal footing, but there are practical implications to consider.
"We're now more than two years beyond the offense, and the community is still trying to heal," Petry said. "This community needs to get some closure, [and] it's tough to do that with you having this trial hanging out there."
Petry also believes that Cahill's rescheduling is keeping the prospects open for the two officers to reach a plea agreement with the prosecution, explaining, "I think courts are always in favor of parties resolving matters on their own. It's just a matter of judicial efficiency."
Last week, the attorneys for Thao and Kueng told Cahill it would be impossible to select an impartial jury in a city that just marked the two-year anniversary of Floyd's death, reigniting worldwide news coverage of a police murder that started a reckoning over brutality in American policing.
The attorneys listed new developments they say could taint the jury pool, including the recent guilty plea from Lane, the February guilty verdicts for all three former officers in federal court, the settling of costly civil rights lawsuits and public comments from politicians such as Ellison.
During last week's hearing, Paule held up the Star Tribune's Variety section to the Zoom camera, which featured a story about a PBS Frontline/Star Tribune documentary that premiered last week following the newspaper's coverage of Floyd's killing and the aftermath.
"I've never had nor heard of a case in Minnesota with this much publicity," Paule said. "I don't know what other choice we have at this point" but to move the trial.
The prosecutor asked Cahill to reject the last-minute request, calling it a play at the same type of sympathetic media coverage the defense claimed to be lambasting.
"Very little has really changed since your honor denied previous motions," said Assistant Attorney General Matthew Frank. People across Minnesota know the details of the case, he said, so a change of venue would not make a difference.
"We have faith in the ability of jurors to take their job seriously and do it fairly," Frank said.
Plunkett, the attorney for Kueng, said questions over jury fairness may be grounds for an appeal in the case of the fourth former officer, Derek Chauvin. Plunkett was referencing how one of the jurors who helped find Chauvin guilty had attended the March on Washington anniversary in 2020.
Star Tribune staff writers Andy Mannix and Rochelle Olson contributed to this report.