Defense, prosecution reverse stances on broadcast of ex-cops' trial in Floyd death

Defense now says no to livestreaming and broadcast, while prosecutors say the enhanced coverage is OK

J. Alexander Kueng, from left, Thomas Lane and Tou Thao
This combination of photos provided by the Hennepin County Sheriff's Office in Minnesota shows J. Alexander Kueng, from left, Thomas Lane and Tou Thao. They face charges of aiding and abetting murder and manslaughter in George Floyd’s killing. 
Hennepin County Sheriff's Office via AP

Updated: 1:35 p.m.

In a reversal from last year, attorneys representing the remaining ex-cops charged in George Floyd’s killing now want to exclude cameras from the courtroom and prosecutors now favor broadcasting the proceedings when the trial starts next year.

On Thursday morning, attorneys for former officers Tou Thao, J. Alexander Kueng and Thomas Lane, who face charges of aiding and abetting murder and manslaughter in George Floyd’s killing, argued against allowing the same type of coverage present during the trial of Derek Chauvin.  

Audio and video streaming of most of Chauvin’s trial earlier this year was allowed by the judge. The same judge will be on the bench for this trial starting in March 2022. 

Attorney Thomas Plunkett, who is representing Kueng, said defense witnesses have told him they won’t testify if the trial is televised. He argued that a “fair” trial to the defendant was more important than an “open” trial.  

“At the end of the trial, it’s only the defendant that goes to prison,” Plunkett told the court. “And at the end of an unfair trial, they go to prison after not having received due process.”

In his court filing last week Plunkett said that the streaming of the Chauvin trial this summer “crushed” Kueng’s right to a defense. 

“The incredible access of the public to the Chauvin proceedings has resulted in fact and expert witnesses declining to testify for the defense, one defense witness being harassed and another defense witness being subject to professional slander,” Plunkett wrote.  

Kueng’s attorney instead said that court proceedings “as we move past COVID” could be shared in an overflow courtroom. 

Earl Gray, the attorney representing Lane, went further, in asking that “eliminating the extensive worldwide coverage” of the case in favor of an overflow courtroom where spectators can watch court proceedings. 

Gray said he’s also had difficulty getting expert witnesses due to the possibility of streaming. 

“After observing a lot of the TV trial, and the aftermath,” Gray said, “I just don’t think we could have a fair trial with the television cameras going on three people at once.”

Gray dismissed arguments that COVID-19 pandemic requires the trial to be streamed, saying he assumes anyone with any common sense has been vaccinated. 

Prosecutors from Attorney General Keith Ellison’s office support allowing streaming, which is a reversal of their position in Chauvin’s trial. 

Prosecutor Nathaniel Zelinsky acknowledged that his office changed their stance on livestreaming after Chauvin’s trial, but said they appreciate the judge’s efforts to “balance public health with access to the proceedings.”

He said defense attorneys, who declined to name the witnesses who told them they won’t testify if the trial is livestreamed, hadn’t given enough information to justify limiting the public’s access.   

“The State now acknowledges that the Court’s audio-visual order — along with the Court’s other prudent measures — successfully protected jurors, witnesses, attorneys, the defendant, and court personnel in State v. Chauvin in the midst of a deadly pandemic,” according to the prosecution’s filing Wednesday. “Audio-visual coverage ensured meaningful public access to the Chauvin trial without compromising public health.” 

Prosecutors argue that the defense didn’t prove that streaming the proceedings would deny the defendants a fair trial. They said the rise of the delta variant of COVID-19 proves that the pandemic is not over, and that the court should take actions to ensure it’s not transmitted to vulnerable people. 

MPR News is part of a media coalition, which includes the Star Tribune and the New York Times, that’s advocating for more public access to the trial. In a filing Wednesday, the media coalition cited the positive impressions of the streamed trial from figures ranging from Ellison to the Hennepin County District Court Chief Judge Toddrick Barnette. 

Attorney Leita Walker argued for the media coalition that social distancing precautions that limit the number of people in the courtroom are still necessary, and that overflow rooms don’t provide adequate public access to the proceedings.  

“Chauvin’s trial demonstrates that the livestreaming of criminal proceedings is not antithetical to the Defendants’ right to a fair trial but that cameras served a crucial role in vindicating the press’ and the public’s First Amendment rights and ensuring that all could see that Chauvin was ‘fairly dealt with and not unjustly condemned,’” according to the media coalition’s filing. 

Walker also argued that defense attorneys didn’t provide any evidence that the livestream of Chauvin’s trial caused witnesses to be harassed. 

Hennepin County District Court Judge Peter Cahill told attorneys that space for reporters and family members is still an issue due to COVID-19 precautions. He also said it became clear during Chauvin’s trial, after there was unrest following Daunte Wright’s killing by a police officer in Brooklyn Center, Minn., that security in the courtroom needs to be considered. 

Cahill said he’ll take the arguments under advisement, but doesn’t expect to issue a decision soon.

During Thursday’s hearing, Cahill also heard a number of other motions for the trial of the three former officers. Robert Paule, who is representing Thao, wanted to call Attorney General Ellison as a witness related to a leak to the New York Times during jury selection in Chauvin’s trial. But Cahill said evidence points to the leak coming from federal law enforcement, and quashed that subpoena, finding that the state “did not engage in misconduct.” 

All four former officers also face federal charges for violating Floyd’s civil rights. Cahill said he prefers that the federal trial conclude before the state trial starts. A hearing is scheduled in the federal case later this month, at which point Gray told the court he hopes they’ll receive a trial date. 

The media coalition has also been fighting to get the names of jurors in the Chauvin trial made public. Cahill told the court he expects to make a ruling on that issue within the next two weeks.

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