MINNEAPOLIS — Attorneys for three former Minneapolis police officers charged in George Floyd's death asked a judge Thursday to bar their upcoming trial from being livestreamed, saying some witnesses won’t testify if the proceedings are broadcast.
The request from attorneys for Thomas Lane, J. Kueng and Tou Thao is an about-face from their earlier request to have the trial publicly broadcast, and it is opposed by prosecutors and news outlets including The Associated Press.
Lane, Kueng and Thao are scheduled to stand trial next March on charges of aiding and abetting both second-degree murder and manslaughter in Floyd’s May 2020 death. Their co-defendant, Derek Chauvin, was convicted in April of murder and manslaughter after weeks of proceedings that marked the first time in Minnesota that a criminal trial was livestreamed in its entirety.
Before Chauvin’s trial, attorneys for all four men requested the trials be broadcast, but Lane and Kueng recently backtracked, with their attorneys saying that the “worldwide publicity” from televised coverage of Chauvin’s trail “crushed” their clients’ right to a fair trial. Attorneys Earl Gray and Tom Plunkett say the public access led some witnesses to decline testifying for the defense, noting one witness in the Chauvin trial has been harassed and another faced professional scrutiny.
“Cameras in the Chauvin Courtroom brought us to the dangerous pass where people are deterred from testifying for the defense because they fear the wrath of the crowd,” they wrote.
Thao's attorney, Robert Paule, said in court Thursday that Thao was joining the other former officers' objections. None of the three defendants attended the hearing.
Hennepin County Judge Peter Cahill, who presided over Chauvin's trial and is also handling the case of the other three officers, said he would rule later on the livestreaming matter.
Minnesota court rules usually ban cameras at criminal trials unless both sides agree to them. Cahill ordered the trials to be broadcast live, over the initial objections of prosecutors, because of the intense global interest in the case and limited courthouse space due to the pandemic. The livestreaming was widely praised and has led the state to consider expanding its rules for broadcasting future court proceedings.
Prosecutors initially opposed livestreaming Chauvin's trial but now say it was the right move — protecting everyone involved during the pandemic, allowing for meaningful public access and letting people watch the fair administration of the justice system.
They favor livestreaming the second trial as well, saying defense claims that audio-video coverage will deny them a fair trial are unconvincing. They say there is no concrete evidence that any witnesses are refusing to testify for the defense — and if that is the case, reluctant witnesses can be compelled to appear.
“Indeed, if Defendants have difficulty finding expert witnesses — and there is no evidence that they cannot secure experts — that difficulty is a product of their overwhelming guilt,” prosecutors wrote.
Attorneys for the media coalition also say the court should allow audio-video coverage, saying even if the trial is not televised, witnesses will still face publicity and scrutiny because their names and content of their testimony will be reported. The media coalition argued that some witnesses aren’t worried about a livestream but just don’t want to be associated with the defendants.
The media attorneys also argue that barring cameras will mean the public can't fully monitor what's going on.
Brock Hunter, a Minnesota defense attorney, said barring cameras won't protect witness identities because “whether on stream testifying or just quoted in the news, they are going to be publicly identified and face potential backlash.”
During Thursday's hearing, Gray dropped his earlier request that the state provide all use-of-force reports since July 2016 in which another officer intervened in force used by a colleague, because he is pursuing information from the city himself. An officer’s duty to intervene came up often during testimony in Chauvin’s trial.
Cahill also denied a defense request to issue a factual finding that a potential expert witness for the state coerced Hennepin County Medical Examiner Dr. Andrew Baker to change his findings by noting that neck compression was a factor in Floyd's death. Paule said Thursday that he wasn't accusing the state of using former Washington, D.C., medical examiner Dr. Roger Mitchell to coerce Baker, but that the state failed to take action after prosecutors learned Mitchell threatened to write an op-ed critical of Baker's findings. The state ultimately did not call Mitchell as a witness in Chauvin's case.
“I'm not finding any coercion at all,” Cahill said, but he ordered the state to provide the defense with materials about their exchanges with Mitchell, and he said the defense could question Baker about any possible coercion during cross-examination at trial.
Cahill also denied a defense request to sanction the state over a New York Times report based on leaked information about how Chauvin had been prepared to plead guilty days after Floyd's death. Numerous lawyers from the attorney general's office and the Hennepin County attorney's office have filed affidavits stating that they weren't the source of the leaked information, and Cahill said Thursday that he doesn't believe the state was the leak's source. He quashed a defense subpoena to have state Attorney General Keith Ellison testify about the issue.
Chauvin has been sentenced to 22½ years in prison. All four former officers also face federal charges that they violated Floyd’s civil rights.