MINNEAPOLIS — While former Minneapolis police officer Derek Chauvin has been found guilty, the other three officers at the scene when George Floyd died in police custody on May 25 face a trial this summer.
The other former officers — J. Alexander Kueng, Thomas Lane and Tou Thao — are set to go to trial on Aug. 23, and it will be televised. The three are charged with aiding and abetting second-degree murder and aiding and abetting second-degree manslaughter.
Legal experts say Chauvin’s conviction on charges of second-degree unintentional murder, third-degree murder and second-degree manslaughter increases the likelihood that the other three will be convicted, but getting convictions still won’t be easy for prosecutors. Chauvin is scheduled to be sentenced on June 25.
All four fired officers were originally slated to be tried together, but Hennepin County Judge Peter Cahill decided to try Chauvin separately, ruling that there was not enough space in the courtroom to allow for social distancing.
Floyd allegedly used a counterfeit $20 bill at Cup Foods, a convenience store located on the corner of 38th Street and Chicago Avenue in South Minneapolis. While Floyd was handcuffed on the ground, Chauvin knelt on Floyd’s neck for nine minutes and 29 seconds, despite Floyd pleading that he could not breathe.
When paramedics arrived, Floyd was not breathing and had no pulse. He was transported to Hennepin County Medical Center, where he was pronounced dead.
The other officers' alleged involvement
Kueng and Lane were the first officers to respond to Cup Foods after an employee called the police.
Both were new to the police force, having only worked a few shifts before May 25. According to the criminal complaint and body-worn camera footage, they approached Floyd, who was sitting in a car across the street. Lane drew his firearm while ordering Floyd to show his hands.
On body-camera video, Floyd can be heard pleading with Lane not to shoot him.
Floyd was placed in handcuffs and spoke with Kueng while Lane talked with Morries Hall and Shawanda Hill, who were in the car with Floyd. Floyd gave Kueng his full name and birthdate.
In the video, Kueng and Lane walk Floyd across the street and try to get him into the squad car. Then, Chauvin and Thao arrive. Chauvin joins Kueng and Lane, trying to get Floyd into the back of the squad car.
Eventually, Floyd is pulled onto the ground, and Chauvin, Lane and Kueng hold him down. Chauvin kneels on Floyd’s neck, while Kueng holds his back and Lane his legs.
At one point, Lane asks if the officers should move Floyd on his side, saying he is worried about excited delirium. Chauvin says, “No, staying put where we got him.”
After Floyd is held on the ground for several minutes, Kueng checks for Floyd’s pulse and says he can’t find one. Chauvin keeps his knee on Floyd’s neck and Kueng and Lane continue to hold Floyd down.
Thao interacts with bystanders at the scene, and orders them to keep back. At one point, he pushes a bystander back. Thao also forbids an off-duty Minneapolis firefighter, Genevieve Hansen, from providing medical aid to Floyd.
Thao can be heard on bystander cellphone video telling the onlookers, “This is why you don’t do drugs, kids.”
Charges compared with Chauvin's
Minnesota Attorney General Keith Ellison filed charges against Kueng, Lane and Thao on June 3, a few days after Chauvin was initially charged by Hennepin County Attorney Mike Freeman.
In addition to aiding and abetting second-degree murder and aiding and abetting second-degree manslaughter, prosecutors have appealed for Kueng, Lane and Thao to be charged with third-degree murder. Oral arguments before the state Court of Appeals on the third-degree murder charge are scheduled for May 20.
The aiding and abetting charges the three former officers face carry the same potential sentences as the charges Chauvin was convicted of. Aiding and abetting second-degree murder is punishable by up to 40 years in prison, or 12½ years if the defendant has no prior criminal history. Aiding and abetting second-degree manslaughter carries a sentence of up to 10 years in prison, or four years if the defendant doesn’t have a criminal record.
If the third-degree murder charge is added on, that carries the same potential sentence as aiding and abetting second-degree murder. Prosecutors also have filed an intent to seek aggravated sentences for the former officers.
According to Minnesota law, “a person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.”
Joseph Daly, emeritus professor at Mitchell Hamline School of Law, said someone charged with the aiding and abetting of a crime is considered to be “equally culpable” as the person who committed it.
Richard Frase, a professor at the University of Minnesota Law School, said holding a victim down or acting as a human shield are both examples of being an accomplice to a crime.
To prove second-degree murder, the prosecution has to prove the other officers helped Chauvin commit an underlying felony, in this case third-degree assault, that was a substantial factor in Floyd’s death.
The second-degree manslaughter charge requires the prosecution to show Kueng, Lane and Thao aided Chauvin in being negligent, creating “an unreasonable risk, and consciously takes chances of causing death or great bodily harm,” the Minnesota statute says.
Frase said the manslaughter charge may be harder for the prosecution to prove compared with the second-degree murder charge. Prosecutors must show that Kueng, Lane and Thao were aware they were taking risks that could cause death or great harm to Floyd to prove the manslaughter charge.
Kueng, Lane and Thao all are currently out on bond.
Daly said Chauvin’s conviction increases the likelihood that the other three officers will be convicted. If Chauvin had been acquitted, the charges against Kueng, Lane and Thao likely would have been dropped, he said.
Both Daly and Frase said the three former officers may ask for plea deals to receive a shorter sentence and avoid a trial.
“If I had to bet on it, I would say they will likely plead out,” Frase said.
The cases against the three are less straightforward than Chauvin’s, Daly said. Kueng, Lane and Thao all played different alleged roles in Floyd’s death than Chauvin did.
From the angle at which Darnella Frazier took her bystander video, Lane and Kueng cannot be seen, as the squad car blocks them from view.
“You don’t have that picture of Chauvin looking at the crowd with that cold, hard stare … with the other three,” Daly said.
Lane and Kueng were new to the police force. Chauvin, however, had been a Minneapolis police officer since 2001 and had trained in Kueng. Thao joined the force in 2008.
Daly said the argument that the officers were simply following Chauvin’s orders would likely not be effective. Daly pointed to precedent set by the Nuremberg trials, which prosecuted those accused of Nazi war crimes who argued they were following orders.
This trial will give Kueng’s, Lane’s and Thao’s defense attorneys “another bite at the apple,” to argue the force the former officers used was justified and Floyd’s underlying health conditions and drug use caused his death, Frase said.
'We may hear remorse from these guys'
Chauvin invoked his Fifth Amendment privilege not to testify during his trial. Eric D. Anderson, senior trial counsel with Early Sullivan, a law firm in California, said he thinks the three other former officers may have more reason to testify.
“We may hear remorse from these guys,” he said.
Frase said that of the three, Thao likely has the best chance of being acquitted, as he did not hold Floyd down. While Kueng and Lane were less experienced, they had gone through training more recently as they were new to the force, Frase said.
The prosecution also will have the opportunity to evaluate what worked well and what didn’t during Chauvin’s trial, and tailor their cases against the other three former officers, Frase said.
Kueng’s attorney, Thomas Plunkett, declined to comment on this story. Lane’s and Thao’s attorneys did not respond to requests to comment.