MINNEAPOLIS – A former Minneapolis police officer who held his knee to George Floyd's neck for minutes will be tried separately from the three other former officers accused in his death, according to an order filed Tuesday that cites limited courtroom space due to COVID-19 restrictions.
Derek Chauvin will stand trial alone in March while the other three former officers will be tried together in the summer. In his order, Judge Peter Cahill cited the limitations of physical space during the coronavirus pandemic, saying it is “impossible to comply with COVID-19 physical restrictions” given how many lawyers and support personnel the four defendants say would be present.
Prosecutors disagreed with the judge’s decision. A defense attorney for former officer Thomas Lane said he believed a separate trial would be better for his client, while the other defense attorneys either declined to comment or did not return messages.
Legal observers say the change benefits Chauvin's co-defendants, who will get a preview of what the state's witnesses will say and more time to prepare. They'll also blame Chauvin, who won't be on trial with them to push back.
Last week, prosecutors asked Cahill to postpone the March 8 trial to June 7 to reduce public health risks associated with COVID-19. In his Monday order, which was filed Tuesday, the judge wrote that while the pandemic situation may be greatly improved by June, “the Court is not so optimistic given news reports detailing problems with the vaccine rollout.”
Cahill's order included an email from Hennepin County Chief Judge Toddrick Barnette, who requested that the trials be separated in a way Cahill deemed fair, after he learned that each defendant planned to have co-counsel or legal support in court. Barnette wrote that he looked at the courtroom's configuration and concluded social distancing couldn't be enforced in that space with so many people. Barnette wrote he believed the courtroom could handle up to three defendants at once.
Floyd, a Black man, died May 25 after Chauvin, who is white, pressed his knee against Floyd’s neck while he was handcuffed face down on the street. Police were investigating whether Floyd used a counterfeit bill at a nearby store. In a video widely seen on social media, Floyd could be heard pleading with officers for air, saying he couldn’t breathe.
Floyd’s death sparked protests in Minneapolis and elsewhere and renewed calls for an end to police brutality and racial inequities.
Chauvin is charged with second-degree murder and second-degree manslaughter in Floyd’s death. Former officers Lane, Tou Thao and J. Alexander Kueng are each charged with aiding and abetting second-degree murder and aiding and abetting second-degree manslaughter.
Defense attorneys had argued last year that the officers should be tried separately, but prosecutors argued against it.
Attorney General Keith Ellison, whose office is prosecuting the case, said Tuesday that he disagrees with Cahill’s decision to separate the trials and to hold Chauvin’s in March.
“The evidence against each defendant is similar and multiple trials may retraumatize eyewitnesses and family members and unnecessarily burden the State and the Court while also running the risk of prejudicing subsequent jury pools,” Ellison said in a statement. “It is also clear that COVID-19 will still be a serious threat to public health in 8 weeks’ time. ... Nevertheless, we are fully prepared and look forward to presenting our case to a jury whenever the Court deems fit.”
Lane’s attorney, Earl Gray, said he thinks it’s better for his client to have a trial separate from Chauvin.
“In a joint trial, there’s always a spillover effect no matter what. You know a jury is supposed to consider each client separately, but that’s hard for anyone to do — common sense tells you that,” Gray said.
Attorneys for Kueng and Chauvin had no comment. Thao's attorney did not return a message seeking comment.
Mike Brandt, a criminal defense lawyer who is not connected to the case, said the decision will benefit Chauvin's co-defendants because they'll get a preview of the state's witnesses and they can hone their strategies. They will also have trial transcripts, which can be “powerful” if a witness changes his or her story during the second trial.
In addition, he said, all three officers can point fingers at Chauvin, who won't be in the same trial to defend himself.
If Chauvin is acquitted, Brandt said, the other three officers can still be tried on the aiding and abetting counts, but the case would become more difficult. Brandt said it's hard for prosecutors to prove a case against those who may be seen as less culpable if they can't convict the alleged main actor.
Brandt also said it’s unlikely the three officers would testify against Chauvin during his trial because they have a Fifth Amendment right against self-incrimination. Even if prosecutors were to offer them immunity, the officers could still face federal criminal charges for violating Floyd’s civil rights — and immunity offered by the state wouldn’t apply in federal court.
Brandt said that while prosecutors likely want the other officers to testify against Chauvin, it's highly unlikely they'd offer immunity in this case.
“I expect it to be all or nothing. I don’t think they are going to make deals for anyone because of the high profile nature of it,” he said. “If this was a gang banger murder, would they be making deals with the less culpable ones? You bet. But these are police officers.”
Thao, Kueng and Lane are scheduled to stand trial Aug. 23.
Associated Press writer Gretchen Ehlke in Milwaukee contributed to this report.