Judge denies prosecution's request to seal filings in Floyd case for at least 48 hours

A Hennepin County judge overseeing the prosecution of four former officers charged in the May 25 killing of George Floyd has denied a prosecution request for a 48-hour seal on filings in the case.

Judge Peter Cahill announced the decision at a hearing Thursday after a defense attorney moved Monday to file into evidence a video and transcript from Floyd's arrest by Minneapolis police in May 2019 — a year before he died in custody on a south Minneapolis street corner.

Cahill said the video "shows what basically everybody already knows: George Floyd was arrested on a previous occasion." He said he would not build in any additional time lag on the release of filings in the case, but added that he won't allow audio, video or photos attached to future filings. That material, if deemed public, will be available at the courthouse, however.

A media coalition, including the Star Tribune, opposed the prosecution motion and received the document as a party in an ongoing dispute over what documents are public in the case. The document and video at issue, submitted by lawyer Earl Gray, highlights similarities in Floyd's behavior in 2019 to what was seen on video in his fatal 2020 encounter with police.

Cahill dispensed with the matter in a 25-minute hearing. He explained that an electronic lag exists between when a document is submitted through the court's e-filing system and when it is accepted by a court clerk and becomes part of the official case record.

The prosecutors sought to build a permanent, 48-hour lag into the process, giving them time to object to filings and keep them out of public view. Prosecutor Matthew Frank accused the defense of "e-mailing things" to the court "just to make them public." This practice, Frank argued, was likely to interfere with a fair trial.

Cahill, however, dismissed that criticism. "I do find that this was good faith on Mr. Gray's part because I left the door open," Cahill said of the possible admission at trial of the 2019 arrest.

The judge noted that he had closed the door on admitting evidence of an armed robbery in Texas involving Floyd. Had Gray's filings included specifics of that case, that would have been in bad faith, Cahill said.

Cahill also said he viewed the 2019 arrest video as potentially helpful to the prosecution's case. The document and video became publicly available immediately after the hearing. What wasn't at issue Thursday was whether the earlier arrest video will be shown to the jury during trial. That ruling will come closer to or during the trial currently set to begin March 8.

According to Gray's memo, he wants to show the video at trial because prosecutors have presented a "false narrative" by portraying Floyd as a "law-abiding citizen that was afraid for his life." In the video, as described by Gray, three police officers were working to get Floyd to respond to commands to show his hands, stop moving around and spit out something he had put in his mouth. Floyd cried out for his "mama" and told police, "Don't shoot me, man."

Gray represents Thomas Lane, who is charged with aiding and abetting murder and manslaughter. Former officers J. Alexander Kueng and Tou Thao face the same charges, while former officer Derek Chauvin, who knelt on Floyd's neck, is charged with second-degree unintentional murder, third-degree murder and second-degree manslaughter.

All lawyers were present for Thursday's hearing, but only Gray stopped briefly on his way out of the courthouse to speak to reporters. After a few minutes, 10K Foundation activist Jonathan Mason grew argumentative and cut off Gray's comments to reporters.

Mason pressed Gray about alleged prior behavior by Chauvin. The lawyer responded that he doesn't represent Chauvin.

As Gray turned to leave, Mason drew close to him and followed him out, accusing him of "protecting a killer." The two men appeared on the verge of exchanging blows.

Gray accused Mason of being under the influence of alcohol; Mason accused Gray of being "afraid" of him.

Despite heavy security, it's the second consecutive hearing on the case that ended in a potentially explosive confrontation of defense counsel. A woman was charged with damaging another lawyer's truck after a Sept. 11 hearing as angry protesters followed and yelled "murderer" at two former police officers and their lawyers on the way out of the courthouse.

Mason told reporters he's not done protesting. "Derek Chauvin will not be allowed to walk free," he said.

Hennepin County sheriff's deputies handcuffed two protesters in the courthouse later in the afternoon. A group of about eight protesters walked around the skyway level of the courthouse a little before 3 p.m.

An unidentified man who yelled "Kill Derek Chauvin!" was handcuffed, searched and taken away after Hennepin County sheriff's deputies apparently found a black handgun on him.

Sheriff's spokesman Andy Skoogman said the man was arrested because an officer recognized him as someone wanted in connection to an Aug. 15 riot and property damage incident that occurred near the Fifth Precinct police station. He was booked into the county jail for probable cause weapons possession, Skoogman said. Guns are prohibited in the courthouse except for law enforcement.

Deputies also handcuffed protester Sara Marshall, 24, who was standing near the man but said she did not know him. She was released after being questioned for about 45 minutes.

"It was traumatizing," Marshall said.

In the brief hearing, Cahill didn't hint at when he might rule on several other significant motions that were argued Sept. 11. They include motions to dismiss the charges against the former officers, to try them separately, and to change the venue of their trials because of pretrial publicity.

Staff writer Chao Xiong contributed to this report.

Rochelle Olson • 612-673-1747