The fate of the last ex-cop charged with Floyd’s murder lies with the judge

MINNEAPOLIS – The attorney for a former Minneapolis police officer who restrained bystanders while his colleagues restrained a dying George Floyd said in court filings Tuesday 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 filing that Tou Thao, despite his nearly nine-year experience, “acted without courage and showed no compassion” and that despite seeing Floyd’s life slowly ebbing away, he disregarded his training.

Tuesday was the deadline for prosecutors and defense attorneys to submit final written arguments in the case of Thao, the latest of the four former officers convicted of Floyd’s killing.

The state and federal cases against Derek Chauvin and the two other officers involved have been largely resolved, save for Chauvin’s appeal of his murder conviction. but Thao asked Hennepin County Judge Peter Cahill to rulebased on prescribed evidence whether he is guilty of an accessory to murder and manslaughter in Floyd’s murder instead of going to trial.

Floyd, a black man, died on 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 screams of “I can’t breathe.” Floyd’s killing sparked protests around the world and forced a national reckoning with police brutality and racism.

Unlike the other three former officers, Thao has claimed he did nothing wrong. When he turned down a plea deal last August, he said “it would be a lie” to plead guilty.

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

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

Paule argued that Thao “reasonably believed” Floyd experienced one controversial set of symptoms known as “excited delirium” and that the actions he took at the crime scene were designed to get Floyd medical attention more quickly because he was trained to view excited delirium as life-threatening. He said Thao was unaware that Floyd was not breathing or had a pulse.

Prosecutor Matthew Frank denied that defense, writing that even witnesses who believe agitated delirium exists have previously testified that Floyd showed none of the symptoms.

“Thao was aware that his three colleagues were lying on top of Floyd and restraining Floyd in the prone position,” Frank wrote. “Thao knew this prone restraint was extremely dangerous because it can cause asphyxia — the inability to breathe — the very condition Floyd repeatedly complained of suffering. Still, Thao made a conscious decision to encourage this dangerous reticence: he actively encouraged the other three officers and aided their crimes by restraining concerned bystanders.”

Cahill has 90 days to rule and deliver a verdict if he finds Thao guilty. He will base his decision on evidence both sides agreed to — exhibits and transcripts from Chauvin’s 2021 murder trial in state court and the federal civil rights process by Thao, J. Alexander Kueng, and Thomas Lane last year. Thao was specifically convicted at the time of depriving Floyd of his right to medical care and failing to step in and stop Chauvin.

Thao testified during his federal trial that he relied on the other officers to attend to Floyd’s medical needs while serving as a “human traffic cone” to control the crowd and traffic outside a Minneapolis supermarket where Floyd attempted to pass a fake $20 bill.

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

His body camera video shows him once telling viewers: “That’s why you don’t do drugs, kids.” When an off-duty firefighter from Minneapolis arrived without a uniform and asked if officers had checked Floyd’s pulse, he ordered, “Back off!”

Thao admitted he heard viewers growing concerned about Floyd’s condition and urging officers to check his pulse. But he said his role was crowd control; There were about 15 spectators. While admitting to hearing Floyd say, “I can’t breathe,” he said he didn’t know anything was seriously wrong with him, even when an ambulance took him away.

Cahill is already familiar with a lot 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 education and work history, as well as his interview with federal court investigators State Bureau of Criminal Arrests.

Thao, Kueng and Lane received and are federal sentences ranging from 3 1/2 years for Thao to 2 1/2 years for Lane serve their time in prisons in othersconditionsas does Chauvin, who pleaded guilty to a federal civil rights lawsuit Serving a 21-year sentence that’ll keep him in jail longer than them Cahill gave him 22 1/2 years in prison under the state charge of second-degree murder because he would qualify for parole sooner in the state system.

Thao is Hmong-American, Kueng is Black, and Lane is White.

If Thao is convicted of an accessory to manslaughter, a more aggravated murder case with a presumptive 12 1/2 years in prison will be dropped. Minnesota guidelines recommend four years for manslaughter. He would serve his state term concurrently with his federal sentence.