Updated 4:32 p.m.
The trial of three former Minneapolis police officers charged with aiding and abetting murder in the killing of George Floyd has been postponed until March.
A Hennepin County judge overseeing the case ruled that the trial, originally scheduled for August, should be delayed to give time for the three officers to be tried on separate and more serious federal charges.
Judge Peter Cahill also said the defendants — Thomas Lane, Tou Thao and J. Alexander Kueng — deserve space from publicity.
Derek Chauvin, the former Minneapolis officer who kept his knee press against Floyd's neck, was convicted of murder and manslaughter last month. He'll be sentenced June 25.
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All three defense attorneys representing the ex-officers agreed with the delay in the trial. But Prosecutor Matthew Frank said at the end of the hearing that "we don't agree with changing the trial date from August." Cahill instructed the prosecutors to work with their federal counterparts to come up with a schedule for the trials.
The federal charges were announced just last week, adding a wrinkle to the state’s case against the four former officers. A federal grand jury indicted the men on charges that they violated Floyd's civil rights. Unsealed Friday morning, the indictment alleges that Chauvin and the other officers deprived Floyd of his constitutional right to be free from “an unreasonable seizure, which includes the right to be free from the use of unreasonable force by a police officer.”
Despite the trial delay, Cahill said the court is still moving forward, dealing with pretrial motions and readying a jury questionnaire. He's still denying defense motions to move the trial out of Hennepin County.
Worries over leak
Cahill said Thursday he was also very concerned about a February leak to the New York Times about plea deal discussions with Chauvin following Floyd’s killing last May.
The paper had reported that Chauvin was prepared to plead guilty to third-degree murder before then-Attorney General William Barr rejected the plan.
Robert Paule, the attorney for Tou Thao, said the leak to the Times was "the single most egregious" episode of misconduct that he's seen in his career and worried about the impact it would have on his client’s right to a fair trial. Paule said he believes prosecutors would be responsible even if no one from their office leaked accounts of the scuttled federal plea deal to the newspaper.
But Cahill disagreed, and said he would only sanction the prosecution if someone in their offices leaked the information or encouraged the leak. The judge said he'd consider everything — even dismissing the case — if he finds out that the prosecution had any role in the leak, which he said posed the danger of contaminating a jury.
Prosecutor Matthew Frank said people in his office were surprised about the Times story, and that he himself was "sick to my stomach" because he knew it would complicate the trial. He said he only had general knowledge of those early plea talks.
Frank said the defense is trying to push the narrative that the prosecution is leaking information out to distract from their clients' actions and "mislead the public and press."
Cahill said repeatedly that he thought the Times leak came from the Justice Department because of the amount of "inside baseball" the stories contained. But the judge said he will allow subpoenas for any prosecutors who don't submit affadavits that they didn't leak it.
He said he would allow for the subpoena of the reporter, but won't force the reporter to reveal sources.
Jane Kirtley, a professor of media ethics and law the University of Minnesota, said in an interview that case law informs the court that subpoening journalists can cause significant damage to the free press and the public's right to know.
“The question is can you get this information by alternative means or remedies that are less destructive to the First Amendment?” Kirtley said.
Duty to intervene?
Also at Thursday’s hearing, attorney Earl Gray, who is representing Lane, argued that prosecutors should obtain and turn over Minneapolis Police Department use-of-force records over the past 30 years.
He said he wants to show that while a policy requiring officers to intervene is in place, that it hasn't been department practice. During Floyd’s arrest, Lane repeatedly asked Chauvin whether Floyd should be rolled onto his side.
Gray said he plans to argue at trial that Minneapolis officers received no training in how to intervene with a colleague.
Frank, the prosecutor, said the request is burdensome and that the records couldn't provide a full picture of whether officers had previously intervened with colleagues who were inappropriately using force.
Judge Cahill asked prosecutors to find out how long the requirement to intervene has been department policy, and to ask Minneapolis police for estimates of how many documents would be included in Gray's request if it went back five or 10 years.
Prosecutors agreed to provide that information to the court within 30 days.
University of St. Thomas law professor Mark Osler, who isn't involved with the case, says that request is not uncalled for.
“That's good defense work, frankly,” said Osler, a former federal prosecutor. “They are always going to want to get information that will allow a thorough cross-examination. If there's something there and they don't have it, they are going to be bulldogs trying to get it out of the government.”