Random thoughts on the Floyd case

Is it possible for any of the four former Minneapolis police officers charged in the death of George Floyd to receive a fair trial? In Minneapolis? If not in Minneapolis, anywhere else in Minnesota? Is it possible that a Hennepin County jury won’t have the external effects of not guilty verdicts in mind when they retire to deliberate?

I’ve had those questions in mind since expedited criminal charges were filed following the rioting that convulsed the Twin Cities. Public officials including Governor Walz have repeatedly declared the officers guilty of murder. We are deep into a verdict first, trial later mode.

Minnesota Attorney General Keith Ellison is not the man for the prosecutor’s job, but he is the man whom Governor Walz has assigned to undertake it. Ellison made his name around town leading crowds chanting support for the (subsequently convicted) defendants charged in 1992 with the cold-blooded murder of Officer Jerry Haaf.

Having teamed up with former Vice Lords gangbanger Sharif Willis, himself a suspect in Haaf’s murder — the murder had been planned at Willis’s house — Ellison led crowds in a chant of “We don’t get no justice, you don’t get no peace.” In the context of Haaf’s murder, it was a credible threat. I wrote about Ellison’s unlikely background for the job of attorney general in the Weekly Standard column “Can Keith Ellison turn lawman?”

Ellison himself has no experience as a prosecutor. He has retained former acting Solicitor General Neal Katyal, now a partner at Hogan Lovell and a regular commentator on MSNBC, as well as Medtronic litigation and investigation counsel Lola Velázquez-Aguilu, Blackwell Burke founding partner Jerry Blackwell and Maslon partner Steven Schleicher to serve as special assistant attorneys general on the case. Ellison’s press release announcing their appointment is posted here. Assistant Attorney General Matthew Frank is the lead lawyer from Ellison’s office prosecuting the cases.

The four cases have been assigned to Hennepin County District Judge Pete Cahill for trial. On Friday morning Judge Cahill held a hearing on pending motions that went on for some three-and-a-half hours. The court has set up pages on each of the cases that provide access to the parties’ filings. The Chauvin case, for example, has its own page here with links to the three other cases.

Defendants have filed change of venue motions. Tou Thao has filed a memorandum of law in support of his change of venue motion. It is posted online here. After setting forth the governing law, the memo urges the court to adopt a new standard for change of venue. It suggests to me that the governing law doesn’t strongly favor the motion.

In court on Friday Thao’s attorney cited his concern that Minneapolis residents fear the impact their verdict would have considering the recent “lawlessness.” Judge Cahill reportedly responded that the problem of pretrial publicity is inescapable. The problem, however, isn’t just pretrial publicity. “If I lived in Moorhead I wouldn’t worry about the streets of Moorhead being burned” after a trial, Thao’s attorney argued.

I would. I would worry about Moorhead, or Rochester, or Duluth, or St. Cloud, or Rochester. Wherever in the state the trial or trials are held, the mob will follow. One is left — I am left — with the thought that the judicial system is ill equipped to deal with cases holding the venue hostage to the jury’s verdict.

Chao Xiong reported on the motion hearing for the Star Tribune in “Judge disqualifies some prosecutors for ‘sloppy’ work in George Floyd case.” Jon Collins and Brandt Williams reported on the hearing for MPR in “George Floyd killing: Judge disqualifies Freeman from cops’ trial.”

The headlines refer to Judge Cahill’s disqualification of prosecutors including Assistant Hennepin County Attorneys Amy Sweasy and Patrick Lofton from the case. As I understand it, they had already withdrawn from the case this past June. Sweasy and Lofton successfully prosecuted the case against former Officer Mohamed Noor last year. Sweasy is in incredibly talented prosecutor. Whether or not Cahill reverses himself on his disqualification order, Sweasy won’t be prosecuting the case. My guess (and that’s all it is) is that she doesn’t want to play second fiddle to Ellison.

The charges against the officers proceed in an atmosphere of mob justice. Perhaps Ellison is the man for the job after all. We are one step removed from The Ox-Bow Incident. TMZ covered this aspect of the case here on Friday. The video in the tweet below provides a glimpse of the gauntlet defendants and their attorneys are walking.

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