MINNEAPOLIS — The judge overseeing the remaining case against two former Minneapolis police officers charged in George Floyd’s killing ordered Monday that the trial be delayed until January in hopes that some additional time will improve prospects for a fair trial.
Tou Thao and J. Alexander Kueng had been due to go on trial next week on charges of aiding and abetting both second-degree murder and second-degree manslaughter in the May 2020 death of Floyd. But Hennepin County Judge Peter Cahill ordered Monday that the trial be delayed until Jan. 5.
Cahill denied a defense motion for a change of venue due to the extensive pretrial publicity surrounding the case. But he said media reports and recent events surrounding connected cases have created “a reasonable likelihood of an unfair trial” if it were to begin next week.
Cahill cited the May 18 guilty plea by Thao and Keung’s co-defendant, former Officer Thomas Lane. He also cited the February convictions of Thao, Kueng and Lane on federal charges of violating Floyd’s civil rights.
The judge said those two events and the publicity surrounding them are significant enough to make it difficult for jurors to presume that Thao and Kueng are innocent of the state charges against them. So, he ordered the delay, just shy of seven months, to diminish the effects of that publicity.
Cahill also presided over last year’s trial of former Officer Derek Chauvin, which ended with a second-degree murder conviction and a 22 1/2-year sentence for the white officer who kneeled on the Black man’s neck for 9 1/2 minutes despite Floyd’s fading pleas of “I can’t breathe.” The killing led to protests worldwide and a national reckoning on racial injustice.
The judge also denied a motion by a coalition of media organizations, including The Associated Press, to reconsider his April decision to prohibit live audiovisual coverage of the proceedings from gavel to gavel. But he said he may reconsider if the Minnesota state court system revises its rules on cameras in the courts by Jan. 4.
Bob Paule, an attorney for Thao, said he thought the decision “was a thoughtful and well-reasoned decision by Judge Cahill.”
Minnesota Attorney General Keith Ellison, whose office is prosecuting the case, said in a statement: “It’s unfortunate for the victims, the witnesses, and community that the opportunity to seek justice has been delayed. The State was ready for trial next week and will be ready next January.”
A message left for Kueng’s attorney was not immediately returned Monday.
The new trial schedule says pretrial motions will be held Jan. 5 and Jan. 6, with jury selection beginning Jan. 9. Questionnaires will be mailed to a new pool of “several hundred” potential jurors around Sept. 1. Opening statements are set for Jan. 30.
In denying a change of venue, Cahill wrote that he is satisfied that a fair and impartial trial can be held in Hennepin County “eventually,” noting that it’s the most populous and diverse county in the state. He said attorneys will get to select jurors from a panel “that will surely exceed 200” after the lengthy questionnaires designed to screen out bias are returned.
Alan Tuerkheimer, a Chicago-based jury consultant, said the reason for the postponement seems like “strange rationale.” He said he doesn’t see how a potential juror’s bias would subside with the passage of time. He said with effective questioning, “jurors with bias can be weeded out today or tomorrow or in early 2023.”
He added that while other events that happen between now and January will consume jurors’ minds, “feelings about these cops will not just vanish over time. As trial approaches in January it will all come back to those who followed this case. For those who haven’t, the passage of time doesn’t matter.”
Mike Brandt, a Minneapolis defense attorney who has been following the case, said although Cahill’s stated reason for the postponement is to dissipate the case’s notoriety, the decision is also likely pragmatic. He said pushing the trial back allows time for Thao and Kueng to be sentenced on their federal convictions first, increasing the likelihood of a plea deal with the state.
“They may not be on the radar, but in my opinion, this enhances the options for a settlement,” Brandt said. He added that once the federal sentences are known, the thinking could be: “If we’re going to be doing this amount of time anyways, and the state agrees to this amount of time, why would we risk going to trial?”
Chauvin has been in prison since his state murder conviction, while Thao, Keung and Lane remain free on bail pending their sentences on federal civil rights convictions. No federal sentencing dates have been set, but defense attorneys said in state court last week that they expect them to be in September. Chauvin pleaded guilty to a civil rights charge, while the other three went to trial.
Cahill’s order said he won’t entertain any potential plea agreements from Thao or Kueng until 15 days after their federal sentencings. They rejected plea deals from prosecutors earlier.
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