Attorney for ex-officer Derek Chauvin asks Court of Appeals not to intervene in case

The attorney for former Minneapolis police officer Derek Chauvin, who is charged in George Floyd's death, is asking the Minnesota Court of Appeals to dismiss a plea from prosecutors to move his trial from March to the summertime.

Attorney Eric Nelson argued in a motion filed over the weekend that prosecutors missed a deadline to ask the Court of Appeals to intervene in the case. He did not address prosecutors' argument that moving the trial was an urgent matter of public health due to COVID-19.

"Respondent respectfully requests that this Court dismiss [prosecutors'] appeal as untimely and improper," Nelson wrote.

Nelson's motion was filed two days after Attorney General Keith Ellison's office, which is leading the prosecution, asked the Court of Appeals to rule on the trial date, and comes more than a month before Chauvin is scheduled to be tried March 8 on second-degree murder and manslaughter charges in Floyd's May 25 death.

"Our appeal is timely and we will be happy to respond to the motion if the Court deems it worthy of a response," said John Stiles, spokesman for the Attorney General's Office.

Ellison's office is asking the Court of Appeals to reverse orders Hennepin County District Judge Peter Cahill issued on Jan. 11 and Jan. 21 rejecting prosecutors' request to hold one trial for all four former officers charged in the case in the summer, when more people would be vaccinated against COVID-19.

Cahill instead ordered one trial in March for Chauvin and a second in August for the other three defendants — former officers J. Alexander Kueng, Thomas Lane and Tou Thao, who are each charged with aiding and abetting murder and manslaughter — because the county's largest courtroom could not accommodate all four defendants at once due to COVID-19 safety protocols. The judge also ordered the trial to be livestreamed because pandemic protocols would severely limit the number of people who could watch the trial in person. Prosecutors resisted the move and unsuccessfully asked Cahill to reconsider his unprecedented decision.

Nelson's two-page motion was brief in its argument, noting that the Minnesota Rules of Criminal Procedure, state laws that govern the handling of alleged crimes and trial and court processes, provide a five-day window for appealing a judge's pretrial order once it is served on attorneys.

Prosecutors' plea for intervention by the Court of Appeals was filed 17 days after Cahill's first order, Nelson wrote.

"Nowhere in its Statement of the Case or Notice of Appeal does [the prosecution] claim it did not receive notice of filing of the [Jan. 11] order," said Nelson's motion. "The State's appeal … must, therefore, be dismissed as untimely."

Upon receiving Cahill's Jan. 11 order first laying out the two-trial plan, prosecutors waited eight days to file a motion to the district court asking Cahill to rescind the plan and return to a one-trial plan he initially laid out in November.

When Cahill rejected the prosecution's request in a Jan. 21 order, the state took seven days to ask the Court of Appeals to intervene, Nelson added.

Nelson last year filed a motion to postpone Chauvin's trial to an unspecified date in the summer in order to cope with copious evidence and because, he alleged, prosecutors had mishandled how they shared evidence with the defense, missing deadlines and providing materials in a confusing manner. Cahill denied the request; Nelson did not revisit the issues in his latest filing to the Court of Appeals.

Assistant Attorney General Matthew Frank and Special Attorney for the State Neal Katyal have said several times that they are prepared to go to trial March 8, but argued that holding one trial in the summertime would prevent creating a COVID-19 superspreader event and would avoid a possible mistrial should a participant contract the virus during the March trial.

Prosecutors requested a hearing so they could argue their case orally, and also asked the Court of Appeals to skip a hearing and immediately issue a "writ of prohibition" to stop the March trial. The prosecution's move is unusual, as the Court of Appeals is designed mainly to review complaints from defendants about the trial process after they have been convicted.

All four defendants are out on bond.