Will the public learn about the biggest criminal trial in modern Minnesota history by streaming it online in real time or by reading the accounts of journalists watching closed-circuit feed from an overflow room?
That’s the question being debated in a flurry of court documents filed in the trial of four former Minneapolis police officers charged in the killing of George Floyd. National and local media outlets have joined all four defendants in pushing for heightened access, but state prosecutors are arguing against it.
The judge in the case has already announced plans to allow an unprecedented level of recording and livestreaming of the trial, acknowledging that space in the courtroom is limited due to the COVID-19 pandemic.
Prosecutors in the Office of Attorney General Keith Ellison have opposed the judge’s plan, saying it doesn’t follow court rules and may intimidate witnesses. But defense attorneys for the officers, as well as a coalition of media organizations including MPR News have pushed to allow the recordings.
Audio and visual recordings of trials aren’t typically allowed in Minnesota, although many states, including neighboring Wisconsin, do allow trials to be recorded and broadcast.
Hennepin County District Judge Peter Cahill issued an order at the beginning of November that allowed for a media representative to record and livestream the trial. Cahill wrote that the right to a public trial was for the benefit of both the defendant and the public.
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“This court concludes that the only way to vindicate the defendants’ constitutional right to a public trial and the media’s and public’s constitutional right of access to criminal trials is to allow audio and video coverage,” Cahill wrote in his decision. He cited previous court decisions that found that the press “guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.”
Cahill wrote that current court rules were so extensive that “the public would be left with nothing but the arguments of the counsel.”
In late November, Assistant Attorney General Matthew Frank asked the judge to reconsider the decision in a motion. He said Ellison’s office was committed to a “public trial” and “transparency,” but that the order transcended court rules, and would require witnesses to “sacrifice their privacy or suffer possible threats of intimidation.”
Frank argued that the Constitution doesn’t “mandate an unrestricted audio and video broadcast of the trial,” and that public access could be provided through overflow rooms and closed-circuit television.
A coalition of journalism organizations, which includes MPR News, the Star Tribune and national newspapers, has repeatedly intervened during this high-profile trial. Ellison’s office previously fought to keep public court documents temporarily sealed, a proposal that the judge rejected.
The coalition weighed in on recording and video on Monday. They argued that the case of the four former police officers didn’t represent a broad constitutional right to record trials, but that there’s never been a criminal trial like it in the history of the country, both because of the “deadly pandemic” and because of the social movements inspired by Floyd’s killing. The coalition argued that meaningful public access to the trial could be achieved through technology the attorney general’s office was challenging.
“The court rightly held that, given the enormous public interest in this trial, the limitations imposed by the pandemic, and the options created by modern technology, meaningful access equates to remote access,” according to the media coalition’s filing.
All attorneys defending the former officers have agreed to the recording of the trial. Eric Nelson, the attorney representing former officer Derek Chauvin, filed a motion Monday urging the judge to stick to the plan of allowing the trial to be recorded and live streamed. Nelson wrote that requiring members of the media and general public to view the trial in overflow rooms presented a risk to their health.
“[M]embers of the public who wish to exercise their civic right to watch a public trial would have to put their health on the line to do so,” Nelson wrote. “On the other hand, a publicly televised trial would offer members of the public an opportunity to exercise their constitutional rights to observe the proceedings without having to risk their health and safety.“
Floyd died after former officer Derek Chauvin knelt on his neck for about nine minutes on May 25 in south Minneapolis. Floyd’s killing led to protests across the nation, as well as looting and arson in Minneapolis and St. Paul. Gov. Tim Walz repeatedly called out the National Guard to provide security.
Chauvin is charged with murder and manslaughter in George Floyd’s killing. The other three former officers, Tou Thao, J Alexander Kueng and Thomas Lane, are charged with aiding and abetting murder and manslaughter.
The trial is scheduled to begin March 8. But attorneys for Chauvin and Thao have asked the judge to push it back — Thao’s attorney asked for a July start date. The defense attorneys argue that prosecutors have dragged their feet in turning evidence. The Attorney General’s office has yet to respond to those motions.