Federal trial of former MPD cops raises court access concerns

MPD Officers Federal Civil Rights Trial
Security fencing surrounds the Warren E. Burger Federal Building as the federal civil rights trial for former Minneapolis police officers J. Alexander Kueng, Thomas Lane and Tou Thao begins last month.
Tim Evans for MPR News file

The federal trial of three former Minneapolis police officers is set to resume on Monday after a hold because of COVID-19. But the proceedings have once again brought attention to concerns over public access to the courts.

Unlike two recent high-profile state trials, federal courtroom proceedings involving the men accused of violating George Floyd's civil rights are not available for view outside the courthouse in downtown St. Paul. That is because state and federal courts have different rules about cameras.

Minnesotans and the world watched a live broadcast of the state murder trial of Derek Chauvin almost one year ago. The former officer was convicted and is serving 22 1/2 years in prison for killing Floyd.

Now, as Tou Thao, J. Alexander Kueng and Thomas Lane undergo a federal trial, the public must rely on the accounts of reporters in an overflow viewing room. And due to COVID precautions, only a handful of pool reporters are allowed inside the courtroom. 

George Floyd Officers Civil Rights
In this courtroom sketch, from left, Tou Thou, attorney Robert Paule, attorney Natalie Paule, attorney Thomas Plunkett, J. Alexander Keung, Thomas Land and attorney Earl Grey appear for opening statements for their trial in the killing of George Floyd in federal court on Jan. 24.
Cedric Hohnstadt | AP

Professor Jane Kirtley, who directs the Silha Center for the Study of Media Ethics and Law at the University of Minnesota, said there has long been a ban on audio and visual coverage of the federal courts, and Minnesota state courts do allow some degrees of access, largely at the discretion of judges. 

“There is no question Minnesota is really retrograde in this regard,” Kirtley said. “Most of the surrounding states have been allowing cameras in criminal trials for many years. Florida has had them in their trial courts since the early 1970s.”

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Under Minnesota court rules, audio and visual coverage of a criminal trial is typically barred unless all parties consent.

Kirtley said the level of access Judge Peter Cahill granted during Chauvin’s state trial in March 2021 was rare. Citing the pandemic and exposure of the case, Cahill ordered the trial be live-streamed — meaning anyone with access to the internet could watch every moment of the trial.

Retired Hennepin County District Judge Kevin Burke has long supported cameras in the courtroom. Burke said it seems inevitable that courts will grant more access.

“I believe that the Chauvin trial and more recently, the Potter trial, have gotten a lot of people who historically had been opposed to say, ‘Maybe we should go ahead and do this,’” Burke said.

George Floyd Officer Trial
A video screen displaying former Minneapolis police Officer Derek Chauvin is seen as the jury announces a guilty verdict at the trial of Chauvin for the 2020 death of George Floyd on April 20, 2021, in Minneapolis.
Julio Cortez | AP 2021

A coalition of media organizations, including MPR News, has been asking for more access in the federal trial of the three former Minneapolis police officers. The news organizations petitioned the 8th U.S. Circuit Court of Appeals last Friday to quash two orders from District Judge Paul Magnuson that they say violated the First Amendment by closing part of the trial and sealing the corresponding transcript.

Attorneys who oppose audio/visual access say they would be concerned victims and witnesses would no longer feel safe with their identities revealed in court.

two attorneys and a defendant listen to a verdict in court
Former Brooklyn Center police officer Kimberly Potter (right) listens with attorney Earl Gray as Judge Regina Chu reads the guilty verdict in her manslaughter trial on Dec. 23, 2021.
Screenshot via Court TV 2021

Defense attorneys for former Brooklyn Center police officer Kimberly Potter argued against cameras in the courtroom, citing safety concerns for witnesses and saying they jeopardized their client’s right to a fair trial. However, presiding Judge Regina Chu allowed the cameras, saying in her order granting audio visual coverage that COVID infections were on the rise, “If this year’s iteration of the pandemic follows the same trajectory as that of 2020, infection rates may very well double by the date of trial.” 

Following the Chauvin state trial last year, the state Supreme Court formed an Advisory Committee on the Rules of Criminal Procedure, consisting of 20 judges, prosecutors and defense attorneys. They convened to discuss Minnesota court rules. 

The rules advisory committee will hold a public hearing on Feb. 25, where members of the public can be heard, before ultimately making a recommendation to the Minnesota Supreme Court. Comments, including any request to address the committee at the hearing, must be sent by email no later than next Wednesday, Feb. 9. 

Without changes, Kirtley said media organizations will continue making motions for more access in individual cases with the goal of upholding the First Amendment for the press and public.

Kirtley said some proceedings, like jury deliberations and grand jury proceedings, will always be exceptions, but judges should start from the presumption the press has the right to be there. It is not just a First Amendment issue, Kirtley said, and the subject matter of federal civil rights cases often lead to cultural shifts.

“It certainly is a trial of the officers involved, but it is very much a trial about policing,” Kirtley said. “and I can’t think of a more important topic today for the public to be able to get a better handle on.”