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Prosecutors: Similar charges warrant 1 trial in Floyd death

Amy Forliti and Steve Karnowski
Associated Press

Minneapolis — Prosecutors in the case of four former Minneapolis officers charged in the death of George Floyd told a judge Friday that the men should face trial together because the evidence and charges against them are similar, and multiple trials could traumatize witnesses and Floyd's family.

But defense attorneys have argued for separate trials, saying they would likely offer “antagonistic” defenses and the evidence against one officer could negatively impact another.

This combination of photos provided by the Hennepin County Sheriff's Office shows Derek Chauvin, from left, J. Alexander Kueng, Thomas Lane and Tou Thao.

The former officers appeared in court Friday for a hearing on the prosecution’s request to hold a joint trial, a defense request to move the trial out of Minneapolis, and other issues. Judge Peter Cahill took most of the issues under advisement, but did grant a defense request to remove a local prosecutor from the case.

Floyd, a Black man in handcuffs, died May 25 after Derek Chauvin pressed his knee against his neck as Floyd said he couldn’t breathe. Chauvin is charged with second-degree murder, third-degree murder and manslaughter. Thomas Lane, J. Kueng and Tou Thao are charged with aiding and abetting second-degree murder and manslaughter.

Chauvin, who is in custody, appeared for previous hearings via videoconference, wearing an orange jail jumpsuit. But for his first appearance in court, he wore a gray suit and wasn't handcuffed or shackled. He didn't make eye contact with any of the defendants as he arrived, but Kueng looked at him as he passed and Lane glanced over.

Attorney General Keith Ellison, whose office has taken the lead on prosecution, was seated at one of two prosecution tables in court.

Cahill said Friday that four Hennepin County prosecutors including County Attorney Mike Freeman, who has long been out of favor with local activists for the way his office has handled cases against police officers, will not participate in the trial because they met with the county medical examiner to discuss the autopsy results. Cahill said they could be called as witnesses.

Before the hearing, a few dozen protesters gathered in front of the courthouse, chanting “No justice, no peace.” One carried a Black Lives Matter flag and wore a black helmet with swim goggles around the back of his head. Some windows on nearby buildings were boarded up.

Protesters hold a die-in outside the Hennepin County Family Justice Center where four former Minneapolis police officers appeared at a hearing Friday in Minneapolis. The officers are charged in the death of George Floyd who died in police custody in May.

Prosecutors said in court filings that the case should proceed with one trial because the evidence – including witness statements, body camera video and police department policy on use of force – is similar for each officer. Prosecutors say the officers also acted in close concert.

Neal Katyal, an outside special attorney who is helping the prosecution, told Cahill on Friday that the “interests of justice” favored one trial because of the extra burden multiple trials would place on the court and witnesses.

“We’re talking about delaying justice for months, if not years,” he said.

Katyal also said the likely heavy publicity over a verdict in a first trial could prejudice the jury pool for later trials. And he expressed worry about the strain multiple verdicts would have on the public.

A joint trial “would allow the community to absorb the verdicts at once. ... We don’t think they should be put through the trauma of four different jury verdicts,” Katyal said.

Defense attorney Earl Gray, who represents Lane, and other attorneys argued briefly against trying the ex-officers together but relied mostly on the arguments they submitted in their briefs. Gray said one advantage to separate trials would be that if Chauvin is tried first and acquitted, the others would essentially be cleared.

Finger-pointing already prevailed in defense court filings. Attorneys for Lane and Kueng argued their clients were rookies who were following Chauvin’s lead. Thao’s attorney, Bob Paule, said his client’s role was “absolutely distinct” from the others, because he was on crowd control and was securing the scene while the other three restrained Floyd.

Chauvin’s attorney, Eric Nelson, wrote that his client’s defense will be different, because prosecutors must prove Chauvin intended to assault Floyd, but they must also show that the other officers knew of Chauvin’s intent before it happened.

“The other defendants are clearly saying that, if a crime was committed, they neither knew about it nor assisted in it,” Nelson wrote. “They blame Chauvin.”

But Chauvin pointed fingers at the others. Nelson wrote that Lane and Kueng — the officers who responded to a forgery call — initiated contact with Floyd before Chauvin and Thao arrived, and that Chauvin believed Floyd was overdosing on fentanyl. Nelson wrote that while Lane and Kueng called for a paramedic and believed Floyd was “on something,” they didn’t elevate the call to one of more urgency or give medical assistance.

“Instead, they struggled to subdue Mr. Floyd and force him into their squad car, likely exacerbating his condition considerably,” Nelson wrote, adding that Chauvin could argue that their inaction led to Floyd’s death.

“If EMS had arrived just three minutes sooner, Mr. Floyd may have survived. If Kueng and Lane had chosen to de-escalate instead of struggle, Mr. Floyd may have survived. If Kueng and Lane had recognized the apparent signs of an opioid overdose and rendered aid, such as administering naloxone, Mr. Floyd may have survived,” Nelson wrote.

George Floyd.

Attorneys for all four men have also asked that the trial be moved from Minneapolis, saying pretrial publicity has made it impossible for them to receive a fair trial.

Cahill deferred most of the discussion on whether to move the trial, saying attorneys haven’t had a chance to file in-depth written arguments on the issue. Cahill said he would like to send out questionnaires to potential Hennepin County jurors in advance to find out whether they’ve seen the pretrial coverage or whether they’ve been affected by it.

Paule, Thao’s attorney, argued for moving the trial, noting the several nights of unrest in Minneapolis that followed Floyd’s death.

The sides were split on whether the jury should be kept anonymous. Some attorneys said they’ve received angry calls from people who think their clients are guilty, and expressed fear that jurors would be subject to coercion if their names become public while the case proceeds.

Nelson said his client was “persona non grata number one in Minnesota” and expressed concern about pressure on the jurors if their names got out. He also said anger over Floyd’s death isn’t limited to Minnesota.

“This incident has caused civil unrest not just nationally, but internationally,” he said.