Last week, after the Justice Department gratuitously announced its civil-rights indictment of the four ex-cops implicated in George Floyd’s death last year, I explained that the fallout was likely to include a long adjournment in the trial of three of the former officers, previously scheduled to commence in August. Sure enough, as our Caroline Downey reports, Judge Peter Cahill has postponed the trial for seven months — until March 2022.
Court-ordered delay of a trial, in the hope that the prejudicial effect of intense media coverage will fade, is a common remedy when defendants colorably claim that the jury pool is likely to be influenced against them — especially if prosecutors are responsible for spates of publicity.
To reiterate, I believe we must assume that the Justice Department’s Civil Rights Division was willfully stoking prejudicial publicity, tainting the jury pool for the now-postponed August trial. In addition, the DOJ was ratcheting up pressure on Judge Cahill to impose a severe sentence on Derek Chauvin, who was convicted on murder charges last month and is to be sentenced next month. There was simply no legal justification for the public announcement.
For the reasons I outlined in last week’s column, I believe the civil-rights prosecution is substantively unnecessary, redundant, and potentially counterproductive. But put that aside. If there is probable cause that the ex-cops’ killing of Floyd violates the civil-rights laws (specifically, section 242 of the federal penal code), the Justice Department is within its proper authority to file charges, there being no double-jeopardy to a successive federal prosecution after state prosecutions (under the “dual sovereignty” doctrine).
Moreover, the Justice Department has a legitimate interest in not appearing to act punitively. That is, it is appropriate for the feds to obtain their indictment before the state proceedings have concluded. That allows them to demonstrate that their indictment is in vindication of an important federal interest, rather than being pursued to punish defendants for contesting their guilt in state proceedings.
Nevertheless, there is an easy, oft-used way to indict federally without instigating the rounds of intense publicity that risk prejudicing the jury pool for an imminent state trial. The Justice Department can simply file the indictment under seal. Grand jury proceedings are secret, so a sealed filing keeps under wraps the fact that federal charges have been approved. Then, after the state trials are over, the DOJ can unseal the indictment and proceed with the federal prosecution.
The Civil Division did not follow that procedure. Obviously, that is due to political signaling: The Biden Justice Department, like the Obama Justice Department on which it is modeled, wants to underscore that it is aligned with the Left’s anti-police activists. That, clearly, is also why Attorney General Merrick Garland wasted no time, following Derek Chauvin’s conviction, to announce that he was launching a civil-rights lawsuit against the Minneapolis Police Department (MPD), alleging a “pattern or practice” of unconstitutional, discriminatory policing — even though (a) the Chauvin trial produced no evidence that his use of excessive force against Floyd was racially motivated (to the contrary, before Chauvin arrived on the scene, Floyd was already in a physical confrontation with former officer Alex Kueng, who is black; and (b) some of the most significant testimony offered by the prosecution, particularly through the MPD’s progressive chief, Medaria Arradondo, who is also black, demonstrated that MPD extensively trains its officers on standard use-of-force and duty-of-care procedures, which the former officers violated in Floyd’s case (the problem was the ex-cops’ performance, not the MPD’s practices).
If you doubt that the Justice Department plays racialized politics in this area, it is worth revisiting the Obama DOJ’s prosecution of police officers involved in shootings in New Orleans during Hurricane Katrina, which I wrote about here. A federal district court threw out a number of convictions, a ruling the Fifth Circuit Court of Appeals upheld, when the trial judge uncovered appalling evidence that Justice Department prosecutors, under assumed names, had contributed media commentary attacking the indicted cops, their lawyers, and the police department. The Justice Department stonewalled the court’s efforts to investigate the misconduct and, of course, the media did not cover the story.
As Caroline’s report notes, in addition to arguing that the trial should be adjourned due to prejudicial publicity, the three still-to-be-tried defendants (Kueng, Thomas Lane, and Tou Thao) are also alleging that state prosecutors leaked information about Chauvin’s plea negotiations. (It has been reported that Trump attorney general Bill Barr declined to take a possible civil-rights prosecution off the table, which induced Chauvin to pull out of a tentative agreement to plead guilty to a state murder charge). Thao’s attorney separately alleges that the county medical examiner was pressured to alter his report on Floyd’s death, subsequently adding “neck compression” after initially concluding that death had not been caused by deprivation of oxygen.
Given the long postponement of the trial, it is unlikely that Judge Cahill will act on these defense allegations anytime soon. Chauvin is scheduled to be sentence on June 25, and faces up to 40 years imprisonment.
I’ll close with an excerpt from last week’s column:
What if Judge Cahill, who has already expressed frustration over federal disregard for the state’s effort to provide due process, decides to grant defense motions for an adjournment and/or a change of venue? That would mean the federal civil-rights case would be pushed further into the future. Federal prosecutors are supposed to respect the state’s constitutional processes while moving efficiently to vindicate federal interests. Here, to the contrary, they are undermining the state’s constitutional processes and risking needless delay on the federal front.