Fate of last ex-cop charged in Floyd murder lies with judge

The attorney for a former Minneapolis police officer who held back bystanders while his colleagues restrained a dying George Floyd said in court filings Tuesday that his client is innocent of criminal wrongdoing and should be acquitted on state charges of aiding and abetting murder and manslaughter.

But prosecutors argued in their filings that Tou Thao “acted without courage and displayed no compassion” despite his nearly nine years of experience and that he disregarded his training even though he could see Floyd's life slowly ebbing away.

Tuesday was the deadline for prosecutors and defense attorneys to file final written arguments in the case of Thao, the last of the four former officers facing judgement in Floyd's killing.

The state and federal cases against Derek Chauvin and the two other officers involved have largely been resolved, except for Chauvin's appeal of his murder conviction. But Thao asked Hennepin County Judge Peter Cahill to decide, based on stipulated evidence, whether he is guilty of aiding and abetting murder and manslaughter in Floyd’s killing, rather than going to trial.

Floyd, a Black man, died May 25, 2020, after Chauvin, who is white, pinned him to the ground with his knee on Floyd's neck for 9 1/2 minutes. A bystander video captured Floyd’s fading cries of “I can’t breathe.” Floyd’s murder touched off protests around the world and forced a national reckoning with police brutality and racism.

Unlike the other three former officers, Thao has maintained that he did nothing wrong. When he rejected a plea deal last August, he said “it would be lying” to plead guilty.

Defense attorney Robert Paule argued in his written closing argument that the state has failed to prove beyond a reasonable doubt that Thao knew that Chauvin was committing a crime, nor that Thao intended to aid in a crime.

“The death of George Floyd was a tragedy,” Paule wrote. “Yet the fact that a tragic death occurred does not transfer it into a criminal act. Thao is innocent of the charges against him because he did not intend that his specific actions were done to assist in the commission of a crime. Every one of Thao’s actions was done based upon the training he received from the Minneapolis Police Department.”

Paule argued that Thao “reasonably believed” that Floyd was experiencing a controversial set of symptoms known as “excited delirium” and that the actions he took at the scene were with the intention of helping to get Floyd medical attention faster because he was trained to view excited delirium as life threatening. He said Thao was not aware that Floyd was not breathing or had no pulse.

Prosecutor Matthew Frank disputed that defense, writing that even witnesses who believe excited delirium exists testified previously that Floyd displayed none of the symptoms.

“Thao was aware that his three colleagues were on top of Floyd, and were restraining Floyd in the prone position,” Frank wrote. “Thao knew that this prone restraint was extremely dangerous because it can cause asphyxia — the inability to breathe — the exact condition from which Floyd repeatedly complained he was suffering. Yet Thao made the conscious decision to aid that dangerous restraint: He actively encouraged the other three officers, and assisted their crime by holding back concerned bystanders.”

Cahill has 90 days to rule and hand down a sentence if he finds Thao guilty. He'll base his decision on evidence agreed to by both sides — exhibits and transcripts from Chauvin's 2021 murder trial in state court and the federal civil rights trial of Thao, J. Alexander Kueng and Thomas Lane last year. Thao was specifically convicted then of depriving Floyd of his right to medical care and of failing to intervene and stop Chauvin.

Thao testified during his federal trial that he was relying on the other officers to care for Floyd’s medical needs while he served as a served as “a human traffic cone” to control the crowd and traffic outside a Minneapolis convenience store where Floyd tried to pass a counterfeit $20 bill.

Thao told the court that when he and Chauvin arrived, the other officers were struggling with Floyd. He said it was clear to him, as the other officers tried to put Floyd into a squad car, “that he was under the influence of some type of drugs.”

His body camera video shows that at one point he told the onlookers, “This is why you don’t do drugs, kids.” When an off-duty, out-of-uniform Minneapolis firefighter arrived and asked if officers had checked Floyd's pulse, he ordered her, “Back off!”

Thao acknowledged he heard onlookers becoming more anxious about Floyd’s condition and calling on officers to check his pulse. But he said his role was crowd control; there were about 15 bystanders. While he acknowledged hearing Floyd saying, “I can’t breathe,” he said he didn’t know there was anything seriously wrong with him even as an ambulance took him away.

Cahill is already familiar with much of the evidence, having presided over Chauvin's trial. But the evidence in this case will also include details from the federal trial about Thao's training and work history, as well as his interview with investigators from the state Bureau of Criminal Apprehension.

Thao, Kueng and Lane got federal sentences ranging from 3 1/2 years for Thao to 2 1/2 years for Lane and are serving their time in prisons in otherstates, as is Chauvin, who pleaded guilty to a federal civil rights charge and is serving a 21-year sentence that will keep him in prison longer than the 22 1/2-year sentence Cahill gave him on the state second-degree murder charge because he would qualify for parole earlier in the state system..

Thao is Hmong American, Kueng is Black and Lane is white.

If Thao is convicted of aiding and abetting manslaughter, a more serious murder count with a presumptive sentence of 12 1/2 years will be dropped. Minnesota guidelines recommend four years on the manslaughter count. He would serve his state term concurrent with his federal sentence.