Attorneys for the coalition of media organizations, including The Associated Press, are asking Judge Peter Cahill to immediately make the body camera videos of Thomas Lane and J. Kueng available for copying. Those videos were filed with the court last week by Lane's attorney, but only transcripts of the audio have been made public.
Court staff told news media that the footage would be made available at an unspecified date for viewing only and that it could not be copied or recorded. Media attorney Leita Walker objected to the in-person, by-appointment viewing only, saying it violates the common law, rules of public access to records and the First Amendment.
Walker said news media outlets want the footage immediately available for copying “so that it may be widely viewed not just by those who have the time and wherewithal to visit the courthouse during a global pandemic but by all members of the public concerned about the administration of justice in one of the most important, and most-watched, cases this State — perhaps this country — has ever seen.”
Floyd, a Black man who was handcuffed, died May 25 after Derek Chauvin, a white police officer, pressed his knee against Floyd’s neck for nearly eight minutes as Floyd said he couldn't breathe. Chauvin is charged with second-degree murder, third-degree murder and manslaughter. Tou Thao, Lane and Kueng are charged with aiding and abetting both second-degree murder and manslaughter. All four officers were fired.
The body camera videos and transcripts were filed last week by Lane's attorney, Earl Gray, as part of a motion to have Lane's case dismissed. Gray said at the time that he wanted the videos to be made public— prompting Cahill to issue a gag order the next day that barred attorneys and parties from discussing the case. In a court filing Monday, Gray said he wants the gag order lifted, arguing his comments didn't warrant the restrictive order.
Attorneys for Chauvin, Thao and Kueng also said in their own court filings that the gag order should be lifted. Chauvin’s attorney, Eric Nelson, said that while the court may have a legitimate interest in reducing pretrial publicity to avoid tainting a jury pool, in the last several weeks Chauvin has been called a murderer and some public officials have referred to the case as a “murder.”
Nelson argued that after more than six weeks of one side of the story, prosecutors are the only ones who have benefited from pretrial publicity. He wrote that “the Constitutional right to a fair and public trial by an impartial jury belongs to the Defendant — not the State.” He said it would be difficult to find pretrial publicity in Chauvin's favor.
Thao’s attorney, Bob Paule, wrote that public statements won’t interfere with the fair and impartial administration of justice as long as everyone follows Cahill's earlier warning. On June 29, Cahill told all parties to avoid talking about the merits of the case, evidence and guilt or innocence.
Kueng's attorney, Tom Plunkett, added that the videos should be made public, saying that denying access has led to an unfair portrayal of the evidence and incomplete reporting by news outlets. Walker wrote that bystander video showing Chauvin kneeling on Floyd's neck has been widely circulated, and there is no reason to believe that making the body camera footage easily accessible to the public and media would materially impact the fairness of a trial.
“Indeed, releasing the transcripts without the accompanying footage is the sort of piecemeal disclosure that threatens not only to mislead the public, including potential jurors, but also to destroy the public’s trust in the judicial system,” she wrote.
Walker noted that a written transcript only captures what someone said, not actions. The transcripts don't capture non-verbal noises, tone of voice or other elements. In addition, Walker said the transcripts of Lane and Keung’s body camera videos differ during crucial moments of the encounter. Allowing journalists to copy the footage, watch it multiple times, transcribe it and compare it to the transcripts and to time stamps from the bystander video will help reporters piece together a more complete story, Walker said.
“As the days of unrest in the Twin Cities showed, it is vitally important that the public have full confidence in the process and outcome of this criminal prosecution,” she said.
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