The day Derek Chauvin held his knee against George Floyd’s neck for more than nine minutes in front of a Minneapolis convenience store, he did not act alone. Former officers J. Alexander Kueng and Thomas Lane helped Chauvin restrain Floyd’s body and legs, respectively, and former officer Tou Thao kept the angry crowd from interfering in the fatal arrest.
Even as Floyd told the officers he couldn’t breathe, none of them tried to stop their fellow officer from taking a life. Now, they’re going on trial this week for their lack of action.
All three ex-officers are facing federal charges for allegedly depriving Floyd of his civil rights the day he was killed by failing to provide the 46-year-old Black man with medical assistance. Thao and Kueng are facing an additional charge for failing to intervene. Lane, who asked, twice, on bodycam video if they should reposition Floyd so he could breathe better, managed to avoid the additional charge.
A jury will ultimately decide how much of a role their inaction had in Floyd’s death. If found guilty, they face up to life in prison.
The vast majority of U.S. police departments require officers to intervene when their colleagues go too far, but police culture and strict adherence to its hierarchy have made that a rare occurrence. Those who do step up and call out bad behavior have been ostracized and even pushed out of the profession for not falling in line. Since Floyd’s death, however, more officers appear to be stepping up. The trial will now set the expectation for whether a failure to intervene can result in serious charges.
“We know a murder happened because Chauvin was convicted. The prosecutors are going to say, ‘If it wasn’t for Thou holding the crowd back and Lane and Keung holding George Floyd, this wouldn’t have happened as it did,’” former federal prosecutor and current president of the West Coast Trial Lawyers Neama Rahmani told VICE News. “You don't have to be the one who had their knee on someone’s neck or anything like that.”
The officers’ defense, on the other hand, will argue that Chauvin’s actions alone ultimately killed Floyd, and the other officers, who were much less experienced, were simply following orders.
The federal trial, which begins with jury selection Thursday, will mark the first time any of the former officers will appear in court for their part in Floyd’s murder. Despite their attempts to be tried separately in 2020, a judge ultimately decided against it. It’s also rare to see a federal trial take place well before the start of state proceedings for the same crime.
The city of St. Paul, where the trial is expected to take place, plans to boost security measures as a precaution during the trial, according to the Star Tribune. Barriers and metal fencing will be erected near the courthouse, and its perimeter will be blocked off from traffic and parking. Only pedestrians will be allowed in the area. St. Paul police will also increase their presence in the downtown area.
‘They weren’t in a position to question Chauvin’
When Chauvin was convicted of second-degree murder last April, prosecutors’ arguments were fairly straightforward: that the former cop used excessive force and showed disregard for human life when he killed Floyd.
After all, Chauvin was the most senior officer—and the only who kneeled directly on Floyd’s neck, despite his protestations that he couldn’t breathe.
Kueng and Lane, for example, were less than a week on the job, and Thou had a cumulative nine years on the force. While Thou had more years in the force compared to his co-defendants, his seniority pales in comparison to Chauvin’s 19 years as a Minneapolis police officer.
“They made these arguments in pre-trial motions that these were trainees,” Rahmani said. “They weren’t in the position to question Chauvin, who had many years of experience and was their training officer.”
Thou will also likely use his relative distance from Chauvin’s actions as his primary defense—even with his record of receiving complaints and citations for sloppy and problematic police practices.
“Thou’s going to argue ‘I was nowhere near George Floyd, I was just making sure that the officers weren’t attacked, I was just doing crowd control,’” Rahmani said. “I don’t think it’s a good argument, but it's an argument nonetheless.”
Jurors can expect to see all relevant footage recorded the day Floyd died, May 25, 2020, including the body camera footage of the officers involved and video recorded by teen bystander Darnella Frazier, who went on to win a Pulitzer for capturing the moments that put Chauvin away for his crimes. While the footage was easily the most damning piece of evidence in Chauvin’s conviction, it could help the defense make its case, particularly for Lane, who questioned whether they should roll Floyd onto his side.
“Lane could easily be found not guilty,” Joseph Daly, an emeritus professor at Mitchell Hamline School of Law in St. Paul and former Hennepin County prosecutor, told VICE News. “It shows that he had some concern for the victim. He was recalling that there was some aspect of when a guy is laying on his stomach, you lay him on his side. That was part of his training.”
Then again, prosecutors could also flip the evidence against Lane.
“They may argue that it indicates that he knew there were big problems with the arrest and that he was deliberately indifferent to Floyd’s serious medical needs,” Daly said
In addition to similar evidence as Chauvin’s trial, a few of the same witnesses are also expected to be called. The off-duty EMT who asked officers to let her provide Floyd with medical attention as well as the Hennepin County Chief Medical examiner Andrew Baker, are slated to take the stand again.
Jurors, however, won’t hear testimony from the now-10-year-old girl who witnessed Floyd’s death and took the stand last spring. Lane’s attorney requested she be barred from testifying, and U.S. District Judge Paul Magnuson granted the request last week.
Any witnesses employed by the city also won’t be allowed to wear their uniforms so as to not sway the jury. Prosecutors will also be barred from asking any witnesses how they felt watching Floyd die under Chauvin’s weight. They’ll also be barred from calling more than one medical expert to testify for efficiency’s sake.
Starting Thursday at 9:30 a.m. local time, a total of 256 potential jurors will be questioned for a group of 40 that both prosecutors and defense attorneys will narrow down with preemptory strikes. A final panel of 12 jurors and six alternates will be selected.
The dangers of COVID-19 will also impact the trial. Only five reporters will be allowed in the courtroom at a given time as a precaution. Judge Magnuson has also asked both sides to run a tight ship as they begin arguments to avoid having to call a mistrial.
"Move the case along and get it tried in a much shorter time. The longer we are in this courtroom, the more potentiality we have with exposure to COVID," the Judge said in court last week, according to the Tribune. "And if we get to that point and we don't have 12 people sitting here, you know what happens. We all go home."