Prosecutors challenge judge's order allowing livestreaming of Floyd trial, arguing it could harm testimony

Recording and livestreaming the trial of the former Minneapolis police officers charged in George Floyd's killing violates court rules and will scare away witnesses, prosecutors argued in a recent court filing.

Attorney General Keith Ellison's office, which is leading the prosecution, filed a motion last week asking Hennepin County District Judge Peter Cahill to rescind his historic order allowing cameras in the courtroom, or alternately, to narrow its scope.

Witnesses "should not be forced to sacrifice their privacy or suffer possible threats of intimidation when they perform their civic duty and testify," said the motion signed by Assistant Attorney General Matthew Frank and Special Attorney for the state Neal Katyal. "The risks of broadcasting witness testimony are particularly acute where, as here, live video and audio coverage may be intimidating to some witnesses and make it less likely that they will testify, potentially interfering with a fair trial."

If the judge won't change his mind, prosecutors said, he should only allow the recording of attorneys' opening statements and closing arguments, and protect witnesses by allowing them to opt out of visual or audio recording.

Prosecutors argued that Cahill's order, issued in early November, violated court Rule 4.02, which requires both the defense and prosecution to consent in order to record a trial.

Defense attorneys representing the four defendants — Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thao — filed a joint motion in June advocating for cameras in the courtroom.

Cahill cited constitutional rights to a fair and public trial as reasons to allow the recording and livestreaming, which is unheard of in Minnesota where cameras are severely limited in courtrooms.

The judge also pointed to intense international interest in the trial and limited courtroom access imposed by COVID-19 restrictions, writing that the "only way to vindicate the defendants' constitutional right to a public trial and the media's and public's constitutional rights of access to criminal trials is to allow audio and video coverage of the trial."

Ellison's office countered the reasoning, arguing that the public and media could watch the trial on closed-circuit TV in overflow courtrooms.

Prosecutors argued that the U.S. Constitution does not compel the recording and livestreaming of a trial, nor does it allow the court to deviate from the state rule.

"Even when some individuals are turned away for lack of space, the constitutional guarantee of a public trial 'will already have been met' when the court affords some members of the public an opportunity to observe the trial," prosecutors wrote.

Defense attorneys argued earlier this year that cameras would ensure a fair and public trial because of courtroom restrictions due to the pandemic and statements city and state officials made about the case.

"The Defendants argue that this relief is necessary to provide the Defendants with a fair trial in light of the State's and other governmental actors multiple inappropriate comments and to assure an open hearing in light of the ongoing pandemic," Kueng's attorney, Thomas Plunkett, wrote in the joint motion.

Prosecutors warned that Cahill's order could create "a precedent with far-reaching consequences" in other cases.

"By the Court's logic, courts would always need to broadcast the criminal trial in any high-profile case where interested spectators will outnumber the available seats," prosecutors wrote. "That precedent would persist long after COVID-19 passes, undermining the careful balance the Minnesota Supreme Court struck in Rule 4.02."

The rule allows judges to overrule objections from the defense or prosecution about cameras in court proceedings held after a guilty verdict has been reached or a guilty plea has been accepted. When cameras are allowed, the rule permits the visual or audio recording of speakers only with their consent.

Ellison's office objected to an exception in Cahill's order that allows minors and Floyd's family members who testify at trial to opt out of being recorded visually but not out of an audio recording.

Broadcasting the voice recording of such witnesses will threaten to alter their testimony, prosecutors said.

"Allowing audio recordings of that testimony is particularly concerning, as these witnesses are especially likely to be affected by the fear of unwanted notoriety or trauma from the broadcasting of their testimony in any form," prosecutors wrote. "That is why Rule 4.02 allows them — indeed, all witnesses — to always object to any recordings."

Trial is scheduled for March 8.

Chao Xiong • 612-270-4708

Twitter: @ChaoStrib