In the nearly two years since George Floyd was murdered outside a Minneapolis convenience store, only one of the four former police officers who presided over the devastating final minutes of the 46-year-old Black man’s life has been sent to prison.
But this week, the three ex-cops who were working alongside convicted murderer Derek Chauvin on May 25, 2020, are set to go on federal trial in St. Paul over charges they violated Floyd’s civil rights in a grisly crime that fueled a national movement. Now, experts say, Chauvin—who became the face of police brutality in America after being filmed pressing his knee on Floyd’s neck for over nine minutes—potentially testifying looms large as a wildcard in the case.
The disgraced inmate could take the stand and serve, intentionally or otherwise, to absolve his former co-workers, J. Alexander Kueng, Thomas K. Lane, and Tou Thao. But just as plausible, experts said, is that Chauvin emerges as a secret weapon for prosecutors in a case that is all about proving that you don’t have to kill someone to be a bad cop.
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“Derek Chauvin’s actions are on trial, even if he is not physically at the defense table,” John Baker, a former defense attorney and law professor at St. Cloud State University, told The Daily Beast. “Having him potentially explain himself, and potentially pin some of the blame on the other officers, could be damaging.”
Attorneys for Kueng, Lane, and Thao did not respond to The Daily Beast’s request for comment. The U.S. Attorney’s office and Eric Nelson, the attorney who represented Chauvin during his state trial and his federal plea agreement, both declined to comment.
According to the federal indictment against the former officers, like Chauvin, they all “saw George Floyd lying on the ground in clear need of medical care, and willfully failed to aid Floyd, thereby acting with deliberate indifference to a substantial risk of harm to Floyd” during the arrest. The group continued with the deadly arrest, prosecutors said, even after a growing crowd began to film and beg for them to stop.
The indictment also singled out Thao and Kueng, alleging that the pair were aware Chauvin was holding his knee on Floyd’s neck despite his being handcuffed and compliant. Thao and Kueng “willfully failed to intervene to stop Defendant Chauvin’s use of unreasonable force,” the indictment says.
The three ex-cops on trial this week are all accused of wilfully depriving Floyd of his constitutional rights while acting under the “color of law,” or government authority; all three have pleaded not guilty. The trio are also facing separate state charges of aiding and abetting murder and manslaughter in a case that will go to trial in June.
“So far, all the allegations in this case have been about what someone did—whether Chauvin killed George Floyd and whether his three colleagues aided and abetted,” Mark Osler, a former federal prosecutor and now a professor at the University of St. Thomas School of Law, told The Daily Beast. “This federal trial will be focused on what they did not do, and how those failures led to Floyd’s death.”
While all four officers were facing federal charges in the case, in December, Chauvin pleaded guilty to violating Floyd’s civil rights, sparing him further prosecution.
The plea from Chauvin came after he was convicted in April on state charges of second-degree unintentional murder, third-degree murder, and second-degree manslaughter, and sentenced to 22 years in prison. As part of a separate federal plea agreement, Chauvin agreed to pay restitution, never work as a law enforcement officer again, and waive his right to appeal his upcoming federal sentencing. Prosecutors agreed, in turn, to drop the other counts against Chauvin.
Chauvin did not testify in his own defense at his state trial.
Legal experts consulted by The Daily Beast noted that the defense teams for Kueng, Lane, and Thao have signaled in court documents they will argue—less than shockingly—that Chauvin was the lone villain in Floyd’s murder. So far, neither side has publicly indicated whether they plan to call Chauvin to testify.
But either side could compel him to do so, and legal experts said it is very difficult to forecast whose case would be most bolstered by him speaking out at length for the first time since the murder.
“He could help the defense by falling on the sword and saying that he was solely responsible for killing Floyd, and that Lane and Kueng were just trainees who were following his orders,” Neama Rahmani, a former federal prosecutor, told The Daily Beast.
“On the other hand, if Chauvin were to take the stand and say he could not have killed Floyd without the help of the other officers who held him down and kept the crowd at bay, that would help the government,” Rahmani added.
Baker, for his part, suggested that the plea agreement Chauvin agreed to in his own federal case was “carefully crafted” to allow for the possibility that the convicted ex-cop might testify against his former colleagues.
In the plea agreement, Chauvin admitted he heard Kueng telling him Floyd did not have a pulse, and that he heard Lane asking him if Floyd should “be rolled onto his side” during the arrest. Notably, however, Chavuin also said in the agreement that he “did not observe” the trio “do or say anything” to get him to remove his knee from Floyd’s body—a claim that could be vital to the prosecution’s case.
“[The plea agreement] was worded to constrain what Derek Chauvin can testify to if he gets called as a witness,” Baker told The Daily Beast. He added that since Chauvin pleaded guilty, “the likelihood of him testifying has increased.”
Since Chauvin’s sentencing date for his federal guilty plea has not been set, cooperation with the prosecution could theoretically result in a shorter prison term. Prosecutors have noted in court documents that they will recommend 25 years for the federal charges Chauvin has copped to, to be served concurrently with his ongoing murder bid.
Even if the prosecution does not intend to put Chauvin on the stand, if they get any indication he may be called by the defense, that could change their calculus.
“You want to get ahead of and get control of key witnesses if you’re a prosecutor,” Rahmani said.
Defense teams for Kueng and Lane have repeatedly stressed in court documents that they had been full-time officers less than a week before they were involved with Floyd’s arrest, ostensibly over an allegedly counterfeit $20 bill used at a store called Cup Foods. Body-camera footage of the incident shows that while Chauvin was pressing his knee into Floyd’s neck and back, Kueng was also restraining the man. Lane, who was holding Floyd’s legs at one point, is heard in footage asking Chauvin twice if they should move him—requests that his lawyers insist prove he was trying to intervene.
Kueng is also seen at one point checking Floyd’s pulse and telling Chauvin he could not find a heartbeat.
In the gut-wrenching video that went viral in 2020, and was played several times during Chauvin’s trial on the state murder charges, Floyd could be heard begging for his mother and saying “I can’t breathe” over two dozen times. Several witnesses also testified that they demanded the officers release Floyd, only for their cries to be ignored.
Thao, for his part, is seen in footage trying to control the angry crowd, even fighting with a bystander at one point to move back.
“Thao was doing crowd control, so his team could argue that he had less control over what Derek Chauvin was doing than the other two officers,” Baker said. “Kueng and Lane, however, were both rookies and could argue they were just following orders.”
Prosecutors will be leaning on some evidence that was already used in the state case—including calling some of the same witnesses and playing police body-camera and witness video. But unlike the state case, the government will ask the St. Paul jury to focus on inaction.
“Did they fail to intervene, did they fail to provide medical aid, did they have a duty to do something?” Osler said. “This is a harder case than Chauvin because it’s difficult to prove a negative. It’s one thing to show what someone did; it’s more complicated to show what they should have done.”
Another way the trio’s individual defense teams may try to combat the prosecution’s argument is by having Kueng, Lang, and Thao testify themselves. Osler noted that by testifying on their own behalf, they could argue they were simply following a more powerful criminal’s instructions during a chaotic situation.
Rick Petry, a professor at the Mitchell Hamline School of Law in St. Paul, said that prosecutors cannot rule out Chauvin testifying for the defense.
That being said, he argued that the facts and circumstances of how Floyd was killed show that “Chauvin could not have done that by himself,” and that a crucial part of the former cop’s plea deal was the agreement “to tell the truth, the whole truth.”
Simply put, if Chauvin were to lie on the stand, it could jeopardize the prosecution’s sentence recommendation—which is still relevant when he faces the prospect of leaving prison his 60s.
Then again, it is always a gamble to put someone on the stand—let alone the main culprit of a highly contentious crime.
“I think he has a huge incentive to testify for the prosecution, if they wanted him,” Petry said of Chauvin. “But from a practical perspective, prosecutors don’t know yet what he is going to say on the stand.”
“Until he gets up there, they don’t 100 percent know.”
