Derek Chauvin will be tried separately in death of George Floyd

Fired Minneapolis police officer Derek Chauvin's trial in connection with George Floyd's death will take place in March, while his three former colleagues will stand trial five months later.

Hennepin County District Judge Peter Cahill's order splitting the trial into two reverses his previous position on the matter, and presents a host of challenges and advantages for the prosecution and defense attorneys.

Chauvin will be tried in Hennepin County starting March 8; J. Alexander Kueng, Thomas Lane and Tou Thao, who also were all fired, will be tried in one trial starting Aug. 23, Cahill ruled in an order made public Tuesday.

The judge wrote that COVID-19, social distancing protocol and uncertainty about the vaccine rollout prevented the four defendants from being tried in one trial as he previously ruled in November.

"The physical limitations of courtroom C-1856, the largest courtroom in the Hennepin County Government Center, make it impossible to comply with COVID-19 physical restrictions in a joint trial," Cahill wrote.

The revelation occurred last Friday when the four defense attorneys consulted with Hennepin County Chief Judge Toddrick Barnette and expressed their intentions to each have a second attorney or a legal aide at their table during trial. Barnette e-mailed Cahill last Friday urging him to split up the trial because of COVID concerns, noting that the courtroom could accommodate three defendants at most.

Attorney General Keith Ellison, whose office is leading the prosecution with assistance from the Hennepin County Attorney's Office, maintained that all four defendants should be tried together to avoid retraumatizing witnesses and family members, and to limit prejudicing potential jurors between trials.

His office previously requested one trial, and filed a motion last month asking Cahill to delay the trial until June 7 when more people would be vaccinated against COVID-19.

"We believe, and independent public health experts agree, that with the advent of the vaccine the threat will be significantly abated by mid-year," Ellison said in a written statement. "… Nevertheless, we are fully prepared and look forward to presenting our case to a jury whenever the Court deems fit."

Chauvin's attorney, Eric Nelson, and Thao's attorneys, Robert and Natalie Paule, also filed separate motions last month asking to delay the trial to an unspecified date and to July 5, respectively, in order to deal with copious evidence.

Nelson and Kueng's attorney, Thomas Plunkett, declined to comment on Cahill's most recent ruling. Lane's attorney, Earl Gray, said, "Good. I had a motion pending for severance." Robert Paule did not respond to requests for comment.

Cahill also ruled that prosecutors did not intentionally mishandle how evidence was shared with defense attorneys. Each defense attorney argued at a hearing last week that prosecutors shared irrelevant material, sandwiched key evidence in between unimportant information, provided duplicates and missed deadlines.

Prosecutors shared evidence as they received it from the source, Cahill ruled, adding that one document was shared several days late in violation of the court's deadlines.

Veteran attorneys and law professors said the new scheduling arrangement will strain the state's resources and spare Chauvin the trouble of fending off co-defendants who blame him for Floyd's death.

It also strongly favors the three defendants who will stand trial in August, they said.

"I'd rather be the attorney for one of the three [co-defendants] than the attorney for Chauvin right now," said Joseph Daly, emeritus professor at Mitchell Hamline School of Law.

Chauvin is charged with second-degree murder and manslaughter; the others are charged with aiding and abetting murder and manslaughter.

"It's very hard on witnesses, it's hard on the court system and it's hard on the prosecutor to do repeat trials of largely the same evidence," said former Ramsey County Attorney Susan Gaertner. "That certainly is amplified in a case like this where there is so much public attention."

Each defense attorney previously requested a separate trial, citing antagonistic defenses. Kueng and Lane's attorneys have blamed Chauvin, who knelt on Floyd's neck for more than nine minutes and was the most senior officer at the scene.

Thao's attorneys have said he was controlling an angry crowd and never laid a hand on Floyd as his colleagues pinned Floyd stomach-down in the street.

"The problem in joint trials is you have to be just as careful about what your [co-defendant] does as what the prosecutor does," said defense attorney Joe Friedberg, who is not involved in the case.

One possible pitfall of the separate trials, Friedberg noted, is it reduces the chances of a jury compromising with its verdict by convicting some defendants and acquitting others.

Kueng, Lane and Thao's attorneys will have the rare opportunity to preview their clients' trial by watching Chauvin's trial, which will be livestreamed. That will give them valuable insight into the prosecution's posture in the case, Cahill's rulings and witnesses' strengths and weaknesses.

"It's always helpful to see what the prosecution's going to do," Daly said. "In some ways, it's like a play and you try to organize [a trial] in a way that will have the most affect on the jurors."

Chauvin's absence from their trial could also cool any juror's negative feelings toward them, legal scholars said.

"There's always the guilt-by-association problem, and it flows downhill to the accomplices," said Richard Frase, a University of Minnesota law professor and co-director of the Robina Institute of Criminal Law and Criminal Justice.

Staff writer Paul Walsh contribute to this report.

Chao Xiong • 612-270-4708