Floyd judge to MN officials: Either stop talking or I'll order a change of venue

Good luck on both counts, Judge Peter Cahill. The attorneys representing four Minneapolis police officers in the George Floyd homicide appeared in court yesterday to hash out preliminary motions in Cahill’s Hennepin County court. One of the attorneys declared that he might file a change of venue motion based on the inability of his client to get a fair trial in Minneapolis, based on continuing commentary by public officials in the Twin Cities.

Those types of motions are routinely denied except in truly exigent circumstances. However, Judge Cahill might have raised a few eyebrows when he agreed that the public commentary had reached “inappropriate” levels, and warned officials to keep their mouths shut about the case. Otherwise, Cahill said, he’s inclined to grant a change of venue, KARE 11 and the Star Tribune reported:

At an omnibus hearing Monday afternoon, several of the defense attorneys representing the former officers — Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thao — criticized city, county and state officials for expressing opinions they believe have tainted their clients’ constitutional right to a fair trial.

“I’m fighting the battle with one hand,” because of the public statements, said Thao’s attorney, Robert Paule, adding that he planned to file a motion for a change of venue.

Hennepin County District Judge Peter Cahill agreed that public commentary on the case has reached inappropriate levels, specifically noting that people aligned with the prosecution are pushing it toward a change of venue.

“It’s in everyone’s best interest” that no public statements about the case be made, Cahill said, noting that they’ve come from family, friends and law enforcement officials. “What they’re doing is endangering the right to a fair trial. They need to understand that.”

As my Twitter friend and attorney Alan Windham suggested, this looks like a brushback pitch more than a real threat. Cahill only has the authority to gag the parties in the case — the prosecutors, defense attorneys, the defendants, and probably AG Keith Ellison, since the case is under his direct supervision. Cahill can’t impose a gag rule on non-parties to the case, such as the governor, commissioner of public safety, mayor, and so on. (Or for that matter, the family and friends of both the defendants and the victim, except for those who will be witnesses at trial.) A change of venue is Cahill’s best leverage to convince them of the wisdom of refraining from influencing the jury pool in Hennepin County.

Just how much leverage does that provide, however? Cahill can’t move the trial out of Minnesota, after all; he can’t even move it out of the metro area, practically speaking. To do so would put too great a burden on witnesses and the family of the victim. The attorneys might want access to the juror pool in Dakota County or another ring county for the purposes of distancing themselves from angry citizens in the Twin Cities proper, but the saturation coverage of George Floyd’s killing is about the same no matter where one goes in this metro area. The anger over Floyd’s very public and excruciating death isn’t all that much different in the ‘burbs here in Minnesota, either.

In other words, Cahill can change the venue, but he’s not going to change the calculus on whether the defendants can find a suitable jury for a fair trial. With proper and extensive voir dire, they can get a jury that will consider only the evidence at trial and the law somewhere in the Twin Cities or metro, and Hennepin might be just as good as anywhere else.

Besides, that change of venue request might seem a bit incongruous to the defense demand to televise or audio-broadcast the hearings and the trial, a motion that Cahill denied on Friday after prosecutors objected. Cahill might revisit the issue before the trial starts, however:

Hennepin County District Judge Peter Cahill noted that Minnesota court rules require both the defense and prosecution to agree in order to allow cameras at pretrial hearings. Prosecutors objected to the defense’s motion, he wrote in his order denying camera access. “Given that this is a case that has already received substantial pretrial media coverage, the Court finds that audio or video coverage of the pretrial hearings in this case would not only violate [Minnesota court rules], but would risk tainting a potential Hennepin County jury pool,” Cahill wrote.

Attorneys representing Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thao filed a motion late Thursday, which was made public Friday, granting permission to record both pretrial and trial proceedings regardless of objections from the prosecution.

“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,” wrote Kueng’s attorney, Thomas Plunkett, who filed the motion on behalf of the other defendants.

Ellison objected on the basis that it would corrupt the process with media grandstanding:

“Cameras could alter the way the lawyers present evidence,” he said in a written statement. “Cameras in the courtroom could subject the participants in the trial to heightened media scrutiny and thereby be distracting to conducting the trial.”

The chances of “creating more sensation than understanding” was “very high,” Ellison said.

That’s undoubtedly true, but the defense argued that Ellison and other public officials have been trying this case in the media since they arrested the four officers. That includes some very suspicious “leaks” about the evidence to the media, Plunkett alleged. The defense wants an opportunity to have the trial speak to the evidence not just to the jury but to the community as well:

“Specifically, this relief is necessary to blunt the effects of the increasing and repeated media attacks from the various officials who have breached their duty to the community,” said Plunkett’s motion. “These State comments have crescendoed to an extraordinary volume this week with the Chief pronouncing that ‘[w]hat happened to Mr. Floyd was murder.’ The State’s conduct has made a fair and unbiased trial extremely unlikely and the Defendants seek video and audio coverage to let a cleansing light shine on these proceedings. Doing otherwise allows these public officials to geld the Constitution.”

That might provide Cahill a Solomonic opportunity after voir dire. Once the jury has been seated, he could order that media can cover the trial with cameras or audio only, since the jury pool no longer would be at risk of tampering. That might be yet another piece of leverage Cahill has to impose good behavior on non-parties to the case. Or, perhaps, Cahill might end up convinced that the public airing of the trial is the only really effective way to deal with the leaks and argumentation that public officials have already put into the public record. Stay tuned — figuratively, at least, and perhaps literally.

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