MINNEAPOLIS — Prosecutors in the George Floyd case took the unusual step Thursday of asking the Minnesota Court of Appeals to intervene after a lower court twice refused their request to hold one trial in the summer for all four ex-Minneapolis police officers charged in the case.
The strongly worded request from Attorney General Keith Ellison’s office accused Hennepin County District Judge Peter Cahill of violating state law and abusing his power when he ordered that one trial would start in March and a second would start five months later.
Ellison’s office, which is leading the prosecution, had argued for one trial in the summertime when more people would be vaccinated against COVID-19.
“The District Court’s decision … to proceed with two trials creates a serious public health risk,” Assistant Attorney General Matthew Frank wrote in his request to the Court of Appeals. ” … District Court’s decision violates the law and threatens serious harms to public health.”
Frank wrote that Cahill’s decisions were “a clear abuse of power.”
Ellison’s office is asking the Court of Appeals to reverse Cahill’s decision and compel him to hold one trial in the summer. Prosecutors filed a short appeal and have additional time to file a more in-depth brief arguing its case.
Prosecutors first filed a motion in late December requesting one trial starting June 7 because of COVID-19.
Cahill ruled Jan. 11 that the fired officers charged in Floyd’s May 25 death would be tried in two separate trials because the county’s largest courtroom could not accommodate them all due to COVID-19 safety protocols.
Ellison’s office filed a motion Jan. 19 asking Cahill to reconsider his ruling, and again asked for a summer trial but did not specify a start date. Cahill rejected that motion two days later with a one-sentence denial and no further justification for his reasoning.
A local legal scholar and former county attorney said the prosecution’s latest move made sense in light of the pandemic, which has been complicated by a new COVID-19 variant discovered in the state and a limited vaccine rollout.
“They have understandable concerns,” said former Ramsey County Attorney Susan Gaertner.
However, Gaertner and Joseph Daly, emeritus professor at Mitchell Hamline School of Law, noted that the Court of Appeals typically does not get involved with cases before trial. The higher court is designed to review issues after a defendant has been convicted and alleges that a facet of the trial process led to their wrongful conviction.
Daly called the prosecution’s request “fairly unusual.”
“The trial judge is supposed to be making the procedural decisions,” Daly said. “The Court of Appeals doesn’t like slowing down a trial … before a trial has even taken place.”
The Court of Appeals is required to review all matters brought before it, and has up to 90 days to issue a decision. Daly predicted a much faster response given the trial date.
“A pandemic event is not normal and could effect how the Court of Appeals looks at this pretrial appeal,” Gaertner said.
Frank wrote in his appeal that Cahill’s rulings also conflicted with a Jan. 21 order from Minnesota State Supreme Court Chief Justice Lorie Skjerven Gildea governing statewide court activities due to COVID-19.
Gildea ordered that effective Feb. 1, jury trials in progress will continue, but that no new jury trials will begin before March 15. She allowed each district’s chief judge to grant exceptions. Defendants in jail charged with certain crimes who had made speedy trial demands were also exempt from the delay. All four of the officers charged in the case have posted bail.
While Gildea’s order and new guidelines issued this week by Hennepin County Chief Judge Toddrick Barnette would likely severely limit the number of trials in March, some trials ostensibly could be held that month.
When prosecutors argued at a Jan. 7 hearing for a summer trial date, Cahill countered by noting that moving their trial would simply lead to other defendants filling the hole instead.
” … Someone is going to be subject to that risk,” Cahill said at the time. “It’s a question of who has to take the risk.”
Former Minneapolis police officer Derek Chauvin is scheduled to be tried on second-degree murder and manslaughter charges in Hennepin County on March 8 starting with jury selection. Opening statements are expected to begin March 29, with about a month of testimony and evidence to follow.
His former colleagues — J. Alexander Kueng, Thomas Lane and Tou Thao — are scheduled to be tried in one trial starting Aug. 23. They are charged with aiding and abetting murder and manslaughter.
Daly and Gaertner questioned Frank’s language in describing Cahill’s decisions.
“I thought, ‘These words are pretty strong,’ ” Daly said. “I did not think it was par for the course.”
Daly said he would have rephrased the argument and avoided accusing the judge of violating the law.
“I’m not sure that language is helpful in seeking the court’s review,” Gaertner said. “But this is a hard case and these are hard times.”
“Judge Cahill is a professional. He will preside with honor and integrity.”