The courts have a legal right to withhold the broad distribution of some evidence, wrote the Hennepin County judge who initially limited distribution of police body-worn camera videos in the George Floyd killing.
Hennepin County District Judge Peter Cahill filed a memorandum Tuesday explaining his rationale, and why he reversed that decision after a coalition of several media companies challenged him.
“Cases that generate intense public interest and media scrutiny highlight the tension between two fundamental rights: the right guaranteed under the federal and state constitutions to criminal defendants to receive a fair trial before an impartial jury, on the one hand, and the right of the public and press to attend criminal trials, on the other hand,” he wrote. “This Court is mindful of both fundamental rights, and the tensions between them.”
Cahill had filed an order Friday allowing the videos’ broad release; they were publicly distributed Monday.
Cahill wrote that he reversed his initial stance because the videos will be admitted at trial and would likely not impact the defendants’ right to a fair trial. Defense attorneys and prosecutors also did not object to their release, he added.
In fact, attorney Earl Gray had filed bodycam videos recorded by his client, former officer Thomas Lane, and his former partner, J. Alexander Kueng, with the court in July. The videos were submitted to support Gray’s motion to dismiss charges against Lane, and became public data under state law.
Cahill soon ordered that the media and public could view the videos inside the courthouse, but only by appointment, and he barred recording them. He wrote in his memorandum that allowing such viewings “does not manifest in ‘secrecy’!”
“Rather, the Court was attempting to mitigate what some colloquially characterize as efforts to ‘try the case in the press,’?” he wrote.
Cahill wrote that his initial decision prohibiting the videos from being viewed or distributed outside of the courthouse was an attempt to prevent tainting potential jurors, not to keep the information secret. And he noted that the courts had created “special websites” to publicly provide court documents and track the criminal cases against four former Minneapolis police officers charged in Floyd’s May 25 killing.
“This remarkable access, not ordinarily available in the tens of thousands of other criminal and civil cases filed annually in the Hennepin County District Court, is the marker of exceptional transparency, not a harbinger of secrecy,” Cahill wrote.
A media coalition filed a motion last month arguing for the videos to be broadly released, and argued its case before Cahill at a hearing. The coalition included the Star Tribune; American Public Media, which owns Minnesota Public Radio; the Associated Press; CBS Broadcasting Inc.; Dow Jones & Co., publisher of the Wall Street Journal; Hubbard Broadcasting, which owns KSTP-TV; and The New York Times Co., among others.
“There is no reason to believe that making the BWC footage itself easily accessible to the press and public would materially impact the fairness of trial,” said the coalition’s motion. “ … As 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.”
Cahill had also filed a gag order in July that broadly prohibited attorneys and several others from discussing the cases or distributing evidence. He rescinded that order late last month after another challenge by the media coalition.
Cahill said, however, that he was attempting to “avoid or at least ameliorate the prospects of unduly tainting the prospective jury pool endangered by the intense media interest and reporting” on the cases.
Cahill noted that case law and Minnesota court rules have determined that public access to court records is “not absolute,” and that trial judges can exercise discretion on access when it “would interfere with an overriding interest.”
He declined in his memorandum to rule on the media coalition’s assertion that it had a First Amendment right to obtain the videos. However, the judge wrote that, “The right to attend a criminal trial does not, perforce, carry with it any First Amendment right to obtain copies of documents and exhibits that have been filed with the court …”
Lane, Kueng and former officer Tou Thao are each charged with aiding and abetting murder and manslaughter.
Former officer Derek Chauvin, who knelt on Floyd’s neck for nearly nine minutes, is charged with one count each of second-degree unintentional murder, third-degree murder and second-degree manslaughter.
A trial is scheduled for March 8.
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