US v. Tou Thao: Opening statements

Yesterday the federal trial of the three former Minneapolis police officers other than Derek Chauvin began in earnest with opening statements. The three officers are Tou Thao, Alexander Kueng and Thomas Lane. They are charged with violating the civil rights of George Floyd in the arrest that resulted in his death. I went down to the Warren E. Burger Federal Building and U.S. Courthouse in downtown St. Paul to watch opening statements on the video feed the court has made accessible to the media.

The AP’s Steve Karnowski is one of four pool reporters who worked inside the courtroom and provided his excellent notes to the rest of us. Steve’s abbreviated account of yesterday’s activities is “Prosecutors: Video will show 3 cops violated Floyd’s rights.” ( Amy Forliti’s byline is also on the story, but I did not see her around yesterday.)

The other pool reporters inside the courtroom were Ashley Soriano (FOX News), Julia Jenae (Court TV) and Lauren Leamanczyk (KARE 11). I can’t find anything by Soriano or Jenae. Leamanczyk’s television hit is below. The Star Tribune story on the first trial day is here.

Here I thought I want only to note my observations and impressions in bullet point form moving from the outside in.

• The video feed for reporters is in the Jury Assembly Room on the court’s first floor with windows overlooking Robert Street outside. As I mentioned yesterday, the skyway into the courthouse is closed and the building is ringed with special security fencing. However, I didn’t see a single person outside the courthouse at any time yesterday other than cameramen. The fencing is ridiculous.

• Judge Paul Magnuson is presiding. Judge Magnuson has served on the bench since 1981. He will turn 85 next month. I thought he occasionally sounded winded and a little difficult to understand on the video feed, but we will control the courtroom. He intends to keep both the prosecution and defense within limits.

• The attorneys gave opening statement that averaged about 35 minutes in length.

• Department of Justice Civil Rights Division counsel Samantha Trepel gave a 35-minute opening statement on behalf of the government. “In your custody is in your care” was her theme. She explained the two charges Tou Thao and Alexander Kueng (failure to intervene to prevent excessive force, deliberate indifference when medical care needed) and the one charge against Thomas Lane (deliberate indifference). They watched George Floyd suffer an agonizing death, she asserted.

• Trepel relied heavily on the bystanders who gathered and called out, repeatedly urging them to check Floyd’s pulse and observing he was dying while Floyd himself complained that he couldn’t breathe 25 times. The bystanders understood that Floyd would die, she said, yet the officers “didn’t lift a finger.” No special training was required to understand that Floyd was in extremis.

• Floyd’s drug high was apparent to the officers. It heightened their duty of care. She briefly reviewed what each officer did and didn’t do during Floyd’s detention. They should have intervened to have Chauvin roll Floyd on his side. They should have administered CPR. She characterized Thao’s comments to the crowd on Floyd’s drug high as taunting. The videos will be central to her case and, as we all know, they will be excruciating.

• I thought Trepel’s opening was concise and effective, but somewhat canned.

• Each of the three officers is separately represented. Robert Paule represents Tou Thao. Thomas Plunkett (he represented Mohammed Noor in the Justine Damond case) represents Alexander Kueng. Earl Gray represents Thomas Lane. Their openings were all good and, cumulatively, defused Trepel’s opening in large part. If I had had to vote after hearing the openings, I would have voted to acquit — but this was after hearing three defense openings.

• The defense attorneys hammered on the “willfulness” element of the offenses charged. An act is done “willfully” if done voluntarily and intentionally and with the specific intent to do something the law forbids. The defense attorneys anticipate a jury instruction that requires the government to prove a bad purpose or improper motive in connection with this element of the offense.

• Representing Derek Chauvin, attorney Eric Nelson emphasized the presumption of innocence and the burden of proof in his opening statement. If that’s all you have, you have to go with it. I think it makes more sense to proclaim what you will prove during the trial, even if you have no burden to prove anything. The three defense attorneys did a good job of doing this. They made the presumption of innocence and burden of proof secondary to the facts that belie the charges.

• Paule acknowledged at the outset that Floyd’s death was a tragedy, but stated that it was not a crime. A tragedy is not necessarily a crime. This was the theme of his opening. Plunkett reiterated this theme in his opening for Kueng.

• Representing Thao, Paule may have the hardest case to defend. After Chauvin, Thao was the most senior officer on the scene. The other two officers were rookies on their third day on the job or so. What a nightmare.

• Paule described Floyd’s drug high. He quoted Floyd: “I was hooping earlier.” He noted that Floyd was foaming at the mouth.

• The defense attorneys all noted that the scene — Cup Foods, at 38th and Chicago in south Minneapolis — is the Bloods’ gang territory and that this was on the officers’ minds. I don’t remember this point being raised in the Chauvin trial. Gray who added that Floyd’s male passenger was in fact wearing red, the Bloods’ color.

• Only Gray explicitly stated that his client would testify, but I thought the officers’ intent to testify was implicit in each of the defense opening statements. I may well be wrong about it, but that’s the way I heard it.

• Paule and others emphasized that only the bodycam videos show what the officers saw and only bystander Charles McMillan observed what transpired before the bystanders started taking their videos. The officers’ bodycam videos are graphic and disturbing as well, but tragedy does not mean a crime was committed.

• In conclusion, Paule stated, the officer were in a situation that was dynamic and dangerous. Police action is difficult to understand in a vacuum.

• What I did not hear: That defendants will introduce evidence that Floyd died of a drug overdose. They did not raise cause of death as an issue in their openings.

• Plunkett stated that the famous video is not what Kueng saw, that it has nothing to do with what Kueng “saw or perceived.” He couldn’t see what bystanders on the sidewalk saw.

• Kueng had inadequate experience and training to deal with the “complex set of circumstances.” Kueng’s defense, as I got it from Plukett’s opening, is an attack on the Minneapolis Police Department.

• Plunkett also talked about how it was a privilege to be an attorney blah blah blah. Good grief. This was the least effective point in the least effective opening.

• Plunkett hammered on the “willfulness” element of the offenses.

• Plunkett discussed Kueng’s background. His absentee father is Nigerian. His mom is the only white person in the family. This may have been the most effective point in the least effective opening. He joined the force because he felt there needed to be a change in policing.

• Plunkett took on former Minneapolis Police Department Chief Medaria Arrandondo. Arrandondo just retired and is highly regarded. He makes an impressive witness. That much I can tell you. Plunkett noted that Arradondo wrote the department’s “duty to intervene” policy, but never mandated “scenario-based training.” The jury will certainly hear more about that, but I anticipate that Arrandondo will be an effective witness for the prosecution on the “duty to intervene” issue.

• Kueng and Lane were the most junior officers on the scene. They were in the same police academy class. Between them they had a total of five post-field training (FTO) shifts.

• Chauvin was the senior officer on the scene and took control of it. In fact, he was Kueng’s field training officer. Kueng was deferential to him.

• Plunkett hammered on the requirement of “deliberate disregard” and “willfulness” in the charges.

• Plunkett implored the jury in conclusion: “Your common sense — please bring that to this case.”

• After Judge Magnuson, Earl Gray must be the second oldest attorney in the courtroom. He must be 77 years old. He is unflappable and somewhat wild. When I was a law clerk working in the Eighth Circuit in 1980, I got Earl appointed to represent a pro se plaintiff in a civil rights claim out of St. Paul. I thought he was old then!

• Representing Thomas Lane, Gray noted that only the deliberate indifference to Floyd’s medical needs is at issue. We don’t shy away from the responsibility, Gray said. Lane was concerned and did everything he could to help George Floyd.

• Earl introduced Lane and drew attention to his wife, pregnant with their first child, sitting in the courtroom. Earl noted Lane’s height — he stands over six feet — and stated that he is a gentle giant with a background in juvenile corrections. No one has ever lodged a complaint of malice or mistreatment against him.

• “Floyd acted erratically, let’s put it that way.” Floyd was hopped up on fentanyl and meth, and Floyd was big and strong.

• He referred several times to the “wrestling match” and the “rassling” to subdue a resistant Floyd.

• Lane called for the ambulance when Floyd cut his lip in the “rassling” and upped the call from Code 2 to Code 3 in the course of the encounter. He was not deliberately indifferent. Indeed, he accompanied Floyd in the ambulance and administered CPR.

• Lane suggested they might use the hobble device rather than subdue Floyd in the prone position. Chauvin overruled him.

• Lane gave a lengthy statement to the Minnesota Bureau of Criminal Apprehension. Gray was about to quote it when Trepel objected to it as hearsay. Judge Magnuson sustained the objection. I should think it will come into evidence during the trial. I have no idea what point Gray wanted to make with it.

• The MPD terminated Lane the day after the incident. He was a probationary employee. “It was his fault,” Gray said indignantly. “That’s Thomas Lane’s story.”

• If you want to hear it from the jury, you have to give it to them one way or another. Gray gave it to them in his concluding words: “This is a perversion of justice, ladies and gentleman.”

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