MINNEAPOLIS – Two former Minneapolis police officers charged in George Floyd's death are heading to trial on state aiding and abetting counts, the third and likely final criminal proceeding in a killing that mobilized protesters worldwide against racial injustice in policing.
J. Alexander Kueng and Tou Thao have already been convicted of federal counts for violating Floyd’s civil rights and begun serving those sentences. Many witnesses expected to testify at their state trial have already done so at both their federal trial and at the state trial against their former colleague, Derek Chauvin.
While much of the evidence in this proceeding will look similar, there will be some key differences.
Here are a few things to know as jury selection gets underway Monday:
WHAT IS THIS TRIAL ABOUT?
Kueng, Thao and Thomas Lane were working with Chauvin on May 25, 2020, when Chauvin, who is white, used his knee to pin Floyd’s neck to the pavement for more than nine minutes as the 46-year-old Black man said he couldn’t breathe and eventually grew still. Kueng knelt on Floyd’s back, Lane held his legs and Thao kept bystanders back.
Kueng, who is Black, and Thao, who is Hmong American, are each charged with aiding and abetting second-degree unintentional murder and aiding and abetting second-degree manslaughter. Prosecutors will have to prove they intentionally helped Chauvin. They don’t have to prove that they intended to kill Floyd or cause him great bodily harm.
THE THIRD TRIAL
Chauvin was the first officer to face trial in a livestreamed, weekslong proceeding filled with emotional testimony from bystanders, graphic video of Floyd’s dying moments and expert testimony about use of force as well as the mechanics of breathing. He was ultimately convicted of murder and manslaughter.
The second trial in Floyd’s death came in federal court, where Lane, Kueng and Thao were all convicted of federal civil rights violations.
“It’s going to be, I think, exhaustingly repetitive for the witnesses who have already testified multiple times and don’t want to relive this,” said Rachel Moran, a professor at the University of St. Thomas School of Law.
But there will be some nuances. Moran said this case could be more difficult for prosecutors: While Chauvin's offense was more direct because he had his knee on Floyd's neck, prosecutors in this case have to show what Kueng and Thao intentionally did to help him commit a crime.
Judge Peter Cahill has limited expert witnesses to try to avoid repetition. He's also ordered attorneys not to ask questions designed to elicit emotion.
SOME NOTABLE DIFFERENCES
Witnesses won’t be allowed to ask the jury to take actions and follow along with demonstrations – as lung and critical care specialist Dr. Martin Tobin did during Chauvin’s trial. In that case, Tobin placed his hands on his own neck and encouraged jurors to do the same as he explained how he believed Floyd died. Jurors said later that Tobin provided some of the trial’s most compelling evidence.
It’s also unknown if a girl who was just 9 at the time of Floyd’s killing will testify. Prosecutors want to call her to argue that even a young girl knew something was wrong – so the officers should have known as well. The defense has countered that her testimony isn't that different from that of other bystanders and will only play upon jurors’ emotions. She previously testified at Chauvin's trial.
Cahill encouraged prosecutors not to call the girl because testifying in a murder trial can be traumatic, especially for children, but he didn’t bar them from doing so.
WERE PLEA DEALS OFFERED?
Yes. Both Kueng and Thao rejected offers for three-year sentences that would have been served at the same time as their federal sentences. Thao told Cahill: “It would be lying for me to accept any plea offer.”
That set them apart from Lane, who pleaded guilty to aiding and abetting manslaughter and got three years. Kueng and Thao are risking significantly longer sentences; the murder charge has a recommended sentence of 12 1/2 years, and prosecutors say they intend to seek more.
“The reality is, it’s their right (to go to trial) and Tou Thao in particular seems to just believe that he has done nothing wrong and therefore he can’t admit to doing anything wrong,” Moran said.
Hundreds of prospective jurors were sent a 17-page questionnaire that explored how much they know about the case, their views on police and whether they’ve participated in civil rights marches, among other things.
Sixteen people will be chosen; 12 will deliberate.
Jurors will be questioned individually about their views and whether they can be fair. An unlimited number of potential jurors can be dismissed “for cause,” such as when a juror has shown that he or she can’t be impartial.
Each side may also dismiss jurors with a limited number of peremptory strikes, which don't require a reason but can be challenged if the other side believes it's due solely to a potential juror's race or gender.
The defense gets 10 such strikes — five for each defendant — and the state gets six.
The key will be finding jurors who can be impartial. Moran said that while diversity on a jury is important, the idea that a jury’s racial composition will affect the outcome has been called into question. She noted that the jury that convicted Kueng and Thao of federal charges was mostly white, as was the state jury that convicted Kim Potter, then an officer in the Minneapolis suburb of Brooklyn Center, in the 2021 fatal shooting of Black motorist Daunte Wright.
Opening statements begin Nov. 7. The trial won't be livestreamed. Cameras in courts are rare in Minnesota, and Chauvin’s was livestreamed due to the high public interest and courtroom space limitations because of COVID-19 restrictions.
WHERE ARE THEY NOW?
Kueng and Thao reported to federal prison earlier this month to begin serving their sentences for violating Floyd’s rights. Kueng is serving three years at federal prison in Ohio and Thao is serving 3½ years at a facility in Kentucky.
They will be in custody in Minnesota during the trial.
Lane, who is white, is serving his 2 ½-year federal sentence at a facility in Colorado. He's serving a 3-year state sentence at the same time.
Chauvin was sentenced to 22 ½ years on the state murder charge and 21 years on a federal count of violating Floyd’s rights. He’s serving those sentences simultaneously at a federal prison in Arizona.
Find AP’s full coverage of the killing of George Floyd at: https://apnews.com/hub/death-of-george-floyd