Tou Thao Moves to Dismiss Murder Charges Due to Leaks | Law&Crime

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Former Cop Charged in George Floyd Death Wants Charges Dismissed, Prosecutors Sanctioned Over Leaked Plea Deal

An attorney representing Tou Thao, one of the former Minneapolis Police Department awaiting trial for the alleged murder of George Floyd, on Tuesday accused prosecutors of leaking “highly prejudicial information” about the case and asked a judge to either dismiss the charges against his client or sanction the state’s lawyers.

The prejudicial information in question stemmed from a Feb. 11 New York Times report which said that Derek Chauvin — the officer filmed kneeling on Floyd’s neck just before his death — was ready to plead guilty to third-degree murder until then-U.S. Attorney General William Barr stepped in to kill the deal at the last second because the situation was developing far too quickly.

According to the report, which was sourced from three anonymous “law enforcement officials,” Chauvin was prepared to serve over 10 years in a federal prison because he believed the evidence against him was “devastating.” Barr reportedly disagreed with the plea bargain because it was too soon to make a judgment call and because such a low-bore charge was unlikely to satisfy the throng of protesters who had taken the streets.

In an eight-page motion, attorney Robert M. Paule alleged that the information could only have come from state prosecutors in an attempt to disadvantage Thao in advance of his trial.

“It is impossible to overstate the magnitude of this misconduct or its prejudicial effect on the defendants’ constitutional due process rights of a fair trial. If this leak would have happened during trial, the Court would be required to declare a mistrial and dismiss the charges with prejudice,” the motion stated. “Leaking a soured plea agreement has no benefit for Mr. Thao. Nor does it benefit any other defendant. The leaked information guarantees that any potential juror who read the article or headlines now knows Mr. Chauvin was allegedly ready to plead guilty to murder and accept responsibility in the death of George Floyd. Logically, the only actor that would benefit from this leak is the State. By leaking unequivocal information about an admission of guilt, the State at a minimum, would be able to force the hand of the Court to continue the case of State v. Chauvin.”

Although the source of the Times’ report has not been revealed, Paule asserted he had deduced that the information could only have come from prosecutors.

“There are a finite number of people that would have had direct knowledge of the alleged plea agreement. The newspaper articles show that Mr. Chauvin’s team was not the source, nor were the federal prosecutors. Using deductive reasoning, the leak had to have come from the State,” he wrote. “Here, it is known that the leaked information came from a ‘law enforcement official.’ If the leak came from an officer, the State has direct control over them as they are agents of the State, investigating officers, and/or potential witnesses in their case against Mr. Thao.”

The motion requested an in-person hearing with Minnesota Attorney General Keith Ellison, Assistant AG Matthew Frank, and Special Prosecutor Neal Katyal where the state-side attorneys would be ordered to “speak on the leak, its source, and their role as supervising attorneys on the case.”

Paule also requested an order requiring all prosecuting attorneys to submit sworn affidavits declaring that they were not responsible for the leak and were not aware of who is responsible. Should the court find any of the affiliated attorneys were responsible for the leak, Paule said the court should immediately dismiss the charges against Thao with prejudice.

Thao was charged with one count of aiding and abetting unintentional second-degree murder, which carries a maximum sentence of 40 years.

Read the full filing below.

Thao Notice of Motion and Motion by Law&Crime on Scribd

[image via Darnella Frazier]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.