The trial for three ex-Minneapolis police officers charged with aiding and abetting murder and manslaughter in the killing of George Floyd has been postponed to next year following their indictment on federal civil rights charges.
J. Alexander Kueng, Thomas Lane and Tou Thao will stand trial on March 7, 2022, instead of Aug. 23 of this year. The rescheduling was announced at a motion hearing Thursday. Hennepin County District Judge Peter Cahill said the federal case should proceed first and that the state trial needed "space" from events this summer, including the June 25 sentencing of ex-officer Derek Chauvin, who was convicted three weeks ago of murdering Floyd.
Attorneys for Kueng, Lane and Thao did not object to the new date. Assistant Attorney General Matthew Frank said he disagreed with the delay, but did not elaborate.
All four former officers were indicted last week by a federal grand jury on charges of abusing their positions of authority to detain Floyd. According to the charges, the officers used the "color of the law" to deprive Floyd of his constitutional rights to be "free from the use of unreasonable force" when Chauvin used his knee to pin down Floyd's neck for more than nine minutes last May 25 while the other three did nothing to stop him. A federal trial has not yet been scheduled.
Jurors convicted Chauvin in state court of second-degree unintentional murder, third-degree murder and second-degree manslaughter.
Thursday's hearing also touched on other key issues: An evidentiary hearing was scheduled for August so defense attorneys can question a New York Times reporter, and possibly prosecutors, regarding a leak to the New York Times about early plea negotiations with Derek Chauvin.
Thao's attorneys, Bob and Natalie Paule, filed a motion in February seeking a dismissal of the charges against their client and sanctions against prosecutors for the New York Times leak, which was published a few weeks before Chauvin's trial began March 8. Lane's attorney, Earl Gray, and Kueng's attorney, Thomas Plunkett, joined Thao's motion.
Bob Paule argued Thursday that the leak harmed his client's right to a fair trial through association with Chauvin. He said the Minnesota Attorney General's Office was likely the source of the leak because the New York Times reporter who wrote the story, Timothy Arango, had met with Gray, and in that meeting Arango had a copy of a prosecution court document that had not yet been publicly filed. Bob Paule called the leak "the single most outrageous" incident of misconduct he's seen in his legal career.
Frank accused the defense of making a "public spectacle" of the issue in an effort to taint the jury pool and further its ongoing push for a change of venue. Cahill has denied a change of venue and noted Thursday that the trial would not be relocated.
Frank said he was "sick to my stomach" over the leak. " … We didn't authorize that leak," he said. "We didn't give that leak."
Cahill said he had a private discussion in February with defense attorneys and prosecutors about the issue and had "suggested" that prosecutors provide affidavits to the court swearing under oath that they did not leak the information. Cahill said Thursday it was "disappointing" that only Frank had submitted an affidavit.
The judge said he had hoped other prosecutors would have followed suit to avoid the "circus" of defense attorneys subpoenaing prosecutors to testify on the matter at a public hearing.
Bob Paule noted that Minnesota Attorney General Keith Ellison sent the judge a letter about the leak and suggested affidavits, but did not submit a sworn affidavit.
"Why did the Attorney General's Office not provide the affidavits to clear this up immediately?" Cahill asked Frank. " … The defense would not leak such a thing."
"I don't agree with that," Frank said.
Frank did not say why Ellison and others did not submit affidavits but noted that the court had given them a May 15 deadline. He declined to comment after the hearing. Frank also suggested in court that Cahill was shifting the burden of proof onto prosecutors. The judge rejected the claim and said defense attorneys will be responsible for investigating their accusations.
Cahill said he believed the leak came from the U.S. Department of Justice since the article focused on how then-U.S. Attorney General William Barr handled the plea negotiations.
"This is a particularly pernicious issue," Cahill said of the leak.
After several rounds of back and forth and escalating frustration from the judge, Frank and Assistant Hennepin County Attorney Joshua Larson said they would seek affidavits from other attorneys in their offices, including Ellison and Hennepin County Attorney Mike Freeman.
Without declaring a specific date, Cahill granted Bob Paule's request for an all-day evidentiary hearing, scheduled for August, to investigate the leak. If prosecutors don't voluntarily provide the court a sworn affidavit, Cahill said, it is "fair game" for defense attorneys to subpoena them to testify. Cahill said Arango can also be subpoenaed, adding that he is "unlikely" to issue a court order asking Arango to reveal his sources.
The New York Times pushed back on the hearing.
"Minnesota law protects reporters from exactly these kinds of subpoenas," said New York Times spokesperson Danielle Rhoades Ha. "The New York Times will vigorously defend against any effort to target our reporters and their sources."
Cahill, who previously served as chief deputy of the Hennepin County Attorney's Office, said that had the leak originated with a staffe,r they should face stiff consequences.
"If I were still the chief deputy of that office, I would be firing that person," the judge said.
Plunkett accused the state of leaking information to WCCO-TV Wednesday that the trial was being postponed. "The leaks in this case have been rampant and they consistently have been from the government," he said.
Earlier in the hearing, Gray asked Cahill to compel prosecutors to produce 30 years' of internal affairs use-of-force reports so he could prove that officers historically have not intervened when colleagues allegedly acted out. Kueng and Thao's attorneys also joined Gray's request.
"It's extremely important in my client's case," Gray said. "He was four days on the job."
Officers are told there's a policy to intervene, but they receive no training or scenario-based instruction on how to intervene, Gray told the court.
Frank said the issue is how Lane — not other officers — behaved.
"It's an excessive, burdensome request," Frank said. "The bottom line is it's not likely to produce relevant, admissible evidence."
Cahill instructed Frank to ask Minneapolis police how many such reports they had for a five-year and 10-year period before he considers Gray's request.
The judge said he did not necessarily believe that Gray had a right to receive 30 years' of reports and noted that policing standards have changed over time.