Updated 4 p.m.
A Hennepin County judge on Friday disqualified four Hennepin County prosecutors, including county attorney Mike Freeman, from participating in the case of four former police officers charged in the death of George Floyd.
Judge Peter Cahill kicked the prosecutors off the case for meeting privately with the medical examiner to discuss Floyd’s autopsy results. The judge called the move “sloppy” but said they could be called as witnesses.
Freeman and Minnesota Attorney General Keith Ellison, who’s leading the prosecution, asked the judge to reconsider. Two of the banned attorneys, Amy Sweasy and Patrick Lofton, successfully prosecuted former Minneapolis police officer Mohamed Noor last year in the killing of 911 caller Justine Ruszczyk.
In a statement later, Freeman defended the attorneys, saying they had acted within Minnesota Supreme Court rules and that Cahill had taken a defense attorney memo seeking to remove the Hennepin County Attorney’s Office at "face value.”
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The medical examiner meeting “was completely routine and if the ruling stands, would make it nearly impossible for prosecutors to obtain, understand and introduce evidence in a case,” Freeman added.
No decision on moving trial
Floyd died on May 25 after Minneapolis police officer Derek Chauvin kept his knee on Floyd’s neck for about nine minutes as the man lay handcuffed and face down on the ground after being arrested for allegedly trying to pass a counterfeit $20 bill at a nearby store.
Chauvin and the other officers at the scene — Thomas Lane, J. Alexander Kueng and Tou Thao — were all fired from the force. Chauvin faces murder and manslaughter charges. Lane, Kueng and Thao are charged with aiding and abetting murder and manslaughter.
Attorneys representing the men have argued against a joint trial and requested that the trial be moved outside the county.
Cahill didn’t rule on either of those motions.
He suggested the court send a questionnaire to prospective jurors to help figure out whether there was any truth to defense attorneys’ arguments that the jury pool in Hennepin County had been tainted by pre-trial publicity of Floyd’s death.
Robert Paule, attorney for Thao, said he was concerned Minneapolis residents fear the impact their verdict would have on themselves and their communities, considering the recent “lawlessness.” The judge countered that there isn’t a county or state in the country that hadn’t heard about Floyd’s killing.
Defense attorneys have argued in filings that Floyd died of an overdose, not because Chauvin was kneeling on his neck. All four defendants have also asked for charges to be dismissed. Cahill said he’ll decide on those motions based on the legal briefs that have already been filed.
Cahill also denied defense requests for evidence about Floyd’s involvement in a 2007 armed robbery in Texas and a 2019 overdose after a confrontation with police.
Any information about whether Floyd served as a police informant or had gang affiliations would not be relevant to the case if the responding officers weren’t aware at the time they encountered him, the judge added.
Prosecutors want four tried together
Prosecutors have proposed trying all four officers together. They argue in a court filing that the charges are similar, eyewitnesses and family members would be traumatized from multiple trials, and that the defenses needed by defendants are not antagonistic.
That would apply in cases where the defendants are forced to blame one another and the jury is forced to decide between them.
Attorneys for the defendants argued that their defenses could be antagonistic, because Lane, Kueng and Thao could argue that Chauvin committed a crime on his own. Prosecutors responded in another filing that the officers worked in close concert at the scene.
On Friday, the judge said the issue of whether officers will be tried together at one trial needed further consideration.
He asked defense attorneys to factor in a court document filed by prosecutors late Thursday that asked to admit as evidence incidents in which ex-officer Derek Chauvin was involved as a police officer. Prosecutors discovered them through use-of-force incidents recorded by the Minneapolis Police Department.
Prior to the hearing, St. Paul attorney Paul Applebaum, who isn’t involved in the cases, said defense attorneys would have difficulty getting the cases separated, partly because it would be difficult for Chauvin to blame the other officers for the charges of murder and manslaughter against him, but also because of the burden of holding four separate trials.
“They’re going to think, ‘I can’t sit through four of these things, and I can’t drag witnesses back four times, and I can’t drag toxicologists back four times,” Applebaum said. “It’s just going to be too unwieldy for the court to do that.”
Jury may be sequestered
Cahill on Friday said he was leaning toward a jury anonymous to the public that may be sequestered at a hotel during jury deliberations.
The decision was partly prompted by the number of people contacting him personally to express opinions about the case, and was bolstered after each defense attorney reported that they had received threatening phone calls and emails since taking on their clients.
Attorney Eric Nelson, who is representing Chauvin, said he received 1,000 emails in the first week, and that he’s received threats against himself, his family and colleagues.
Cahill said he plans to release juror names after the trial is done, “with the only exception that if there is civil unrest, I’m not going to release the names during civil unrest.”
Prosecutors oppose making the jurors anonymous.
Cahill said in court that he’s leaning toward a plan that will keep the jury away from the public, having them drive to an undisclosed location and be escorted to a private room at the courthouse by sheriff’s deputies.
Defense attorneys for the officers have also filed motions asking for charges to be dismissed. Cahill has noted that motions to dismiss will be decided after briefs are filed and not argued at Friday’s hearing.
Prosecutors have not yet filed a response to Chauvin’s motion to dismiss the charges.
The parties will also argue over evidence the defense has requested from the state.
Defense attorneys for the officers asked whether Floyd was a confidential informant or if he had gang affiliations. The prosecution's response in a filing was "the victim is not on trial here."
The court will also consider how to safely hold a high-profile criminal case during a pandemic. A coalition of media organizations, including MPR News, has pushed for more access to hearing and evidence.
Defense attorneys have supported efforts to allow the proceedings to be streamed, although Ellison’s office has expressed concern about the impact that audio and visual coverage of the hearings could have on witnesses and how lawyers present evidence.
Thao, Kueng and Lane are free on bail as the cases proceed. Chauvin is being held at Oak Park Heights correctional facility.
The trial is scheduled to start in March. Cahill estimated it could last six weeks, including two for jury selection.
‘Whole world saw’
A peaceful protest that morning drew hundreds of people outside the Family Justice Center on Friday morning. Authorities shut down the block in front of the building and set up barricades and fencing.
Before the hearing began, protesters staged a “die-in” demonstration this in front of the Family Justice Center, where the hearing is being held.
Jae Yates of the group Twin Cities Coalition 4 Justice 4 Jamar said the defense’s request for the change of venue is to seek a whiter, more conservative jury who will side with the former cops.
"But the whole world saw what they did to Mr. Floyd, and the whole world is outraged,” Yates said. “We demand that these trials stay here, where they have to face the wrath of the communities they have terrorized."
Elizer Darris of the ACLU of Minnesota said the community demands justice. “Is a panel of white jurors better positioned than those of us, who live right here? Are they better positioned to judge this than us?” Darris asked, to a chorus of “Hell no!”
As the attorneys and defendants left the court building after the hearing, they were surrounded by protesters angry about Floyd’s killing.
The crowd screamed at and surrounded attorney Earl Gray and Lane as they walked to their vehicle a block away. The crowd parted for the vehicle, but at least one person punched it as the driver pulled away.
Following the hearing Friday, Floyd family attorney Ben Crump dismissed defense arguments that drugs in Floyd’s system were responsible for his death.
"They are trying to say the knee on his neck for 8:46 was reasonable, they are trying to claim some asinine theory about an overdose,” Crump told reporters. “I want to be clear about this, the only overdose that killed George Floyd was a overdose of excessive force and racism by the Minnesota, Minneapolis police department."
Floyd's family, attorney Ben Crump provide reaction after Friday's hearing: