MINNEAPOLIS — A litany of 170 motions were argued in Hennepin County District court ahead of the joint trial of two ex-Minneapolis police officers charged with aiding and abetting George Floyd's killing, and who are already serving federal sentences for violating Floyd's civil rights.
Former Officers J. Alexander Kueng and Tou Thao waived their right to appear at hearings Thursday and Friday. Kueng, 29, is in custody at the Elkton, Ohio, federal prison and Thao, 36, remains at the federal medical center in Lexington, Kentucky. Their trial is slated for Oct. 24, starting with an anticipated two weeks of jury selection. Judge Peter Cahill expects the trial to wrap up by Dec. 16.
Thao's attorney Robert Paule suggested jury selection may be challenging because "every member of society ... has heard of this case" and has seen much of the evidence in Derek Chauvin's trial.
Witnesses will largely be a repeat of that trial and the federal trial, with a few exceptions like an aviation safety professor from Ohio State University who will draw parallels between pilots and officers on the "duty to intervene." Prosecutors opposed the witness though Cahill allowed it.
Defense attorneys and prosecutors had a familiar debate over "excited delirium" expert testimony, which is a controversial diagnosis typically referring to a person experiencing a severe state of agitation. Cahill reiterated his skepticism over introducing it at trial.
In the federal trial of then-Officers Thao, Kueng and Thomas Lane, the defense tried to argue that the officers were following their training when responding to Floyd on May 25, 2020. Lane — a rookie officer at the scene along with Kueng — was heard on body camera video saying he was "concerned about excited delirium or whatever."
Minneapolis police have been trained on the term and how to manage it as recent as last year, despite Minneapolis Mayor Jacob Frey saying it was no longer part of MPD training. The nation's largest professional physicians association declared it's an overly broad term often misapplied to justify excessive police force or unneeded sedatives.
Floyd died after Chauvin knelt on his neck for more than nine minutes while Lane held his legs and Kueng knelt on his back. Thao prevented bystanders from intervening during the street corner confrontation in south Minneapolis.
Lane was sentenced Sept. 21 in Hennepin County District Court. He pleaded guilty in May to avoid this upcoming state trial and instead serve three years in prison for his role in Floyd's killing, but Kueng and Thao rejected the same offer. The two former officers could have served the sentence concurrently with their federal sentences of three years for Kueng and 3 1/2 for Thao.
"It would be a lie and a sin for me to accept a plea deal," Thao said at the August hearing.
Chauvin was convicted in Hennepin County District Court last April and received a 22 1/2-year state sentence that June for murder. He pleaded guilty to federal charges in December.
Thao and Kueng face two charges: aiding and abetting second-degree murder, and aiding and abetting manslaughter. If found guilty of both counts, they could receive at least 16 years in prison.
In hearings this week for the last remaining trial stemming from Floyd's killing that sparked international protest over police brutality and racial justice, prosecutors moved to allow testimony from experts on the unreasonableness of the officers' use of force, which is the central issue in this case. They aim to "prove, beyond a reasonable doubt, that George Floyd did not die from a drug overdose, an enlarged heart, carbon monoxide, or whatever other mechanism of death defendants suggest to the jury," prosecutors argued in motions.
The state tried to prohibit jurors from seeing evidence from MPD training on fentanyl because prosecutor Danielle Desaulniers Stempel said that Chauvin's attorney Eric Nelson used this to argue medical causation with the pills in Floyd's possession and alleging he ingested enough to kill him when toxicologists proved otherwise. Cahill denied the motion to limit this evidence.
Several use-of-force training experts will make a reappearance, like MPD Inspector Katie Blackwell, who runs MPD's training unit and told jurors in the federal trial that the former officers defied training when they helped restrain Floyd. But Paule showed slides on the department's excited delirium training that included videos and photos of other officers pinning down suspects with their knees.
Attorney Tom Plunkett pushed back on Blackwell's testimony, calling the field training "incompetent," but Cahill will allow her testimony to offer opinion based on experience and training. Plunkett argued that wasn't the same training Kueng and Lane received.
There will also be testimony of familiar bystanders who will not be allowed to say how witnessing Floyd's killing made them feel. The defense successfully requested the court to prohibit the state from asking questions of witnesses to illicit any emotional response.
"We're not calling these people for them to cry on the stand," said prosecutor Matthew Frank, adding that it was emotionally distressing and difficult to relive as a witness.
A 9-year-old girl at the time of Floyd's death was among the crowd of bystanders lining the sidewalk and calling on the officers to help Floyd is again on the state witness list. But defense attorneys tried to ban her testimony.
"We don't need the jury to be held by the hand of a 9-year-old," said Thao's attorney Natalie Paule, who said there is video from the girl's phone to show the jury what she saw.
Prosecutor Nathaniel Zelinsky said the purpose of having the girl testify is to show these are human beings who witnessed this, and that if she could tell Floyd was in medical distress, the officers should have recognized that as well.
Cahill will allow the girl to testify, as well as former MPD Chief Medaria Arradondo, who is expected to be permanently replaced. Prosecutors are allowed to ask how he came to fire the officers the day after Floyd's killing, but they cannot mention any civil litigation or settlement with Floyd's family.
Defense attorneys tried to limit prosecutors to one expert witness per area of expertise, but the state pointed to Chauvin's trial and ex-MPD Officer Mohamed Noor in the shooting death of Justine Ruszczyk Damond. The district court in both cases allowed the testimony from multiple use-of-force experts.
Thao's attorneys also sought to prevent Darnella Frazier from testifying because of the awards the teenager received for filming Floyd's death, or bystander and firefighter Genevieve Hansen from testifying in uniform to avoid influencing the jury.
Defense attorneys believe all bystander footage is prejudicial, but like previous trials, those videos seen around the world will be played for the jury at this trial.
