U.S. v. Tou Thao (4)

I went down to the Warren E. Burger Federal Building and U.S. Courthouse in downtown St. Paul to view the attorneys’ closing arguments in the federal trial of the three former Minneapolis police officers other than Derek Chauvin charged with violating the civil rights of George Floyd in the arrest that resulted in his death. The three officers are Tou Thao, Alexander Kueng and Thomas Lane. I covered the scene and the opening statements last month here.

The Associated Press covered the closing arguments in a story by Steve Karnowski, Tammy Webber and Amy Forliti here. I am not going to summarize the arguments in this post. Rather, I want only to add my own observations and impressions on the closing arguments in the form of bullet points.

• The video feed for reporters is in the Jury Assembly Room on the court’s first floor with windows overlooking Robert Street outside. The skyway into the courthouse is closed to the public and the building is ringed with special security fencing. Not a single protester has been in sight. I saw one St. Paul police officer stationed in a cruiser outside the First Bank Building kiddy corner and down the block from the courthouse on Robert Street. The situation was well in hand.

• Our winter weather has proved inimical to the mob scene that surrounded the trial of Derek Chauvin in Minneapolis. One of the reporters told me that protesters were organizing themselves on Facebook in anticipation of the jury, but they have made themselves scarce so far.

• The court declared a snow emergency and Judge Magnuson excused the jury at 4:00 p.m. without providing jury instructions. He is instructing the jury this morning.

• This case has disrupted and delayed the orderly prosecution of the three officers in state court. I have yet to see an explanation for what the Department of Justice has done here. In his closing argument, defense attorney Earl Gray raised the question in slightly different form and offered his own explanation. Gray indignantly exclaimed: “It’s politics!” (Judge Magnuson overruled the government’s objection.)

• Assistant United States Attorney Manda Sertich made the closing argument for the government. She emphasized the observations of the bystanders and the undisputed legal duties of the officers. Sertich read her opening statement from a notebook and drew on exhibits that illustrated her argument as she spoke. Her occasionally mocking tone grated on me. I thought Sertich’s argument was competent and effective but canned. Indeed, I thought she was most effective in thinking on her feet to modify her argument in response to the objections that Judge Magnuson sustained. KARE 11 reporter Lou Raguse thought more highly of her argument than I did (and I respect his judgment).

• Defense counsel objected frequently to Sertich’s argument. Judge Magnuson sustained a surprising number of these objections. He was antipathetic to the repetitive elements of the government’s case.

• Assistant United States Attorney LeeAnn Bell gave the rebuttal to the defense arguments and Judge Magnuson all but shut her down in response to defense objections. Bell was aggressive and skilled speaking from notes without a text. Her appearance and demeanor struck me as the essence of high-handed second-guessing from a perch in a comfortable office.

• Defense counsel Robert Paule represented Tou Thao and spoke on his behalf. I thought he was a credible and compelling advocate.

• Defense counsel Tom Plunkett represented Alexander Kueng. He was not good. He was the least persuasive of the three defense counsel — disorganized and somewhat incoherent.

• Defense counsel Earl Gray represented Thomas Lane and spoke on his behalf. Lane is charged with only one of the two counts the other officers face (the deliberate indifference count). The government’s case against Lane is the weakest of the three.

• Gray was intense in broad strokes that left openings on rebuttal. He was impassioned. He poured it on. Lane is a good man. He has lived a good life. Going beyond the presumption of innocence and the burden of proof, Gray did especially well in arguing that the evidence introduced against Lane was evidence of innocence.

• Each of the three officers testified at trial. All three defense counsel hammered on Floyd’s drug intoxication and the “excited delirium” that each of the officers believed Floyd labored with at the time of the arrest. It took three officers to subdue him and they were afraid that he would revive and continue his resistance. I would guess the jury will begin with Lane’s case in deliberations. He has a strong defense. If he is not acquitted, I should think the other officers will be convicted on both counts.

• None of the three defense attorneys mentioned in their closing that the government would have the last word before Judge Magnuson instructed them in the law they are to apply and that they would not have the opportunity to respond.

• All defense counsel emphasized the “willfulness” (“bad purpose” or “improper motive”) element of the two charges against Thao and Kueng. This is the challenge of the government’s case. Sertich and Bell asked jurors to use their common sense in analyzing this element. “Willfulness” is like a child doing what he knows is wrong.

• This was a much fairer trial than Chauvin’s. Chauvin defense counsel Eric Nelson confronted a dream team more or less all by himself. The presence of three defense counsel contending with the government in this case came closer to leveling the field. Perhaps most importantly, as I say above, each of the three officers testified in his own behalf and must have helped himself to some extent in the eyes of the jury.

UPDATE: Beyond the scope of anything I can contribute, Andrew McCarthy criticizes the Department of Justice’s theory of the case in his NRO column this morning (behind the NRO paywall):

[T]he Civil Rights Division is inflating what progressives see as best policing practices — e.g., that a police officer must take action to prevent another officer’s brutality (especially in a racially fraught case), and that a police officer must provide some minimum quantum of medical attention — as if those best-practice guidelines were actually constitutional rights. And DOJ is doing this in the absence of any congressional action. There is no law from which we could say that the Biden administration’s preferred practices have been codified into statutory rights. The prosecutors are simply making it up.

The Section 242 civil-rights crime prescribes the death penalty, life imprisonment, or a sentence of up to ten years, depending on the extent of bodily injury a victim suffers due to an alleged deprivation of rights. If penalties of such severity are going to be imposed, not just for violent police acts but for police omissions, then there must be a higher obligation on the Justice Department to spell out, in the indictment, exactly where it is stated in federal law that a police officer must take the action that prosecutors accuse him of omitting. Not in a Biden-preferred policing-practice manual; in an actual federal law. If there is no such federal-law provision, the Justice Department should be required to state, in the indictment, from what source it is deriving this duty to take action (is it a court decision, a presidential speech, a Justice Department memo?). Finally, to satisfy the criminal-intent requirement, prosecutors should also be required to state their basis for alleging that this duty is so well-established that the police officer’s failure to act must have been willful.

It is rudimentary constitutional law that an accused must be given notice of the crime charged. Cops have civil rights, too.

It’s a shame that no one has pressed the Department of Justice on any point related to this prosecution, let alone the question of fundamental right that Andy raises.

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