Former cop's plan to testify could throw wrench into federal trial over George Floyd's death: Experts

·6 min read

One of the three former police officers being tried on federal charges stemming from George Floyd's death plans to testify in his own defense, but legal experts said the decision announced this week by Thomas Lane's attorney is fraught with risk and might pressure the other defendants to do the same.

Lane's lawyer, Earl Gray, said during his opening statement Monday in U.S. District Court in St. Paul, Minnesota, that the 38-year-old former Minneapolis police officer plans to take the witness stand in the high-profile case.

If Lane testifies, he will be the first former police officer involved in the 2020 fatal arrest to publicly speak of his role in the incident. He is expected to tell jurors what was going through his mind while he helped hold down the handcuffed 46-year-old Black man as his then-senior officer, Derek Chauvin, dug his knee into the back of Floyd's neck until he was rendered unconscious and lost his pulse.

Chauvin was convicted in Minnesota state court in April of second-degree unintentional murder, third-degree murder and second-degree manslaughter. He was sentenced to 22 1/2 years in prison.

Chauvin, 45, also pleaded guilty to federal civil rights charges stemming from Floyd's death and the abuse of a 14-year-old boy he bashed in the head with a flashlight in 2017. He admitted in the signed plea agreement with federal prosecutors that he knelt on the back of Floyd's neck even as Floyd complained he could not breathe, fell unconscious and lost a pulse.

"If one of them does it, it almost suggests they all have to," Jill Huntley Taylor, a veteran jury consultant and trial strategist, told ABC News. "If someone testifies and you don't, then how does that look to the jury? You're not willing to answer to the charges, but your co-defendant is."

PHOTO: Witness Kimberly Meline testifies during the trial of three former Minneapolis officers charged with violating George Floyd's civil rights during his 2020 arrest, in St. Paul, Minn., Jan. 25, 2022. (Cedric Hohnstadt/Reuters)
PHOTO: Witness Kimberly Meline testifies during the trial of three former Minneapolis officers charged with violating George Floyd's civil rights during his 2020 arrest, in St. Paul, Minn., Jan. 25, 2022. (Cedric Hohnstadt/Reuters)

Lane and his former police colleagues, Alexander Kueng, 28, and Tou Thao, 35, are fighting federal civil rights charges for their alleged roles in Floyd's 2020 murder.

All three are charged with using the "color of the law," or their positions as police officers, to deprive Floyd of his civil rights by allegedly showing deliberate indifference to his medical needs as Chauvin kneeled on the back of the handcuffed man's neck for more than nine minutes, ultimately killing him.

Kueng and Thao both face an additional charge alleging they knew Chauvin was kneeling on Floyd's neck but did nothing to stop him. Lane, who appeared to express concern for Floyd's well-being during the encounter, does not face the additional charge.

They have all pleaded not guilty.

Attorneys for Kueng and Thao have not said if they will testify.

PHOTO: A protestor stands outside of the courthouse before opening arguments of the civil trial of three former police officers charged with violating George Floyd's civil rights when they took part in his deadly arrest in St. Paul, Minn., Jan. 24, 2022.  (Eric Miller/Reuters)
PHOTO: A protestor stands outside of the courthouse before opening arguments of the civil trial of three former police officers charged with violating George Floyd's civil rights when they took part in his deadly arrest in St. Paul, Minn., Jan. 24, 2022. (Eric Miller/Reuters)

Former federal prosecutor Neama Rahmani told ABC News that Lane is in the best position to testify because he was the only officer captured on police body camera footage asking Chauvin and Kueng if they should roll Floyd onto his side to ease his breathing.

"Lane, in particular, has the best case because he specifically asked, 'Hey, should we turn him over? I'm concerned,'" Rahmani said.

Lane is not expected to testify until after the prosecution rests its case.

During his opening statement on Monday, Gray emphasized that Lane was "totally concerned and did everything he possibly could to help George Floyd."

MORE: Timeline: The impact of George Floyd's death in Minneapolis and beyond

Gray told the jury that Lane was the only officer on the scene who asked about rolling Floyd to his side or using a hobble device to restrain him instead. He said Lane also voiced his concerns that Floyd was exhibiting signs of "excited delirium," a syndrome in which a subject displays wild agitation and violent behavior that can sometimes lead to death.

Gray also said Lane was the one who called an ambulance to the scene. He said that once the ambulance arrived, Lane was the sole officer to go in the ambulance and help the paramedics try to revive Floyd.

"Not deliberatively indifferent about his health at all," Gray said of Lane's reactions during the episode.

PHOTO: Former Minneapolis Police Officer Thomas Lane arrives at the U.S. District Court in St. Paul, Minn., on Jan. 11, 2022. (Kerem Yucel/AFP via Getty Images, FILE)
PHOTO: Former Minneapolis Police Officer Thomas Lane arrives at the U.S. District Court in St. Paul, Minn., on Jan. 11, 2022. (Kerem Yucel/AFP via Getty Images, FILE)

Gray is the same attorney who represented former Brooklyn Center, Minnesota, police officer Kim Potter in her state trial in the killing of Duante Wright, a 20-year-old Black man she shot in the chest during a struggle when she drew her handgun and fired apparently thinking it was a stun gun. Potter, who testified in her trial, was convicted of first-degree and second-degree manslaughter and faces a maximum sentence of 15 years in prison.

The May 25, 2020, police encounter with Floyd, who was accused of using a counterfeit $20 bill to buy cigarettes at a convenience store, was recorded on video from start to finish and included multiple angles taken by bystanders with cellphones, police body cameras and surveillance cameras.

MORE: Derek Chauvin's presence to loom large in fed trial of former cops charged in George Floyd's death: Experts

The footage showed Chauvin grinding his knee into the back of Floyd's neck for 9 minutes and 29 seconds while Kueng helped keep Floyd down even after he stopped resisting by placing his knee on the man's back and holding and lifting one of his handcuffed hands. Lane, according to the videos, held down Floyd's feet.

Both Kueng and Lane were rookie police officers being trained by Chauvin at the time of the fatal encounter with Floyd.

Rahmani said Kueng might opt not to take the witness stand because he would possibly have a more difficult time explaining why he did nothing to stop Chauvin's excessive use of force and why he didn't try to help Floyd. Police body camera footage played at Chauvin's trial captured Kueng during the incident saying he check Floyd for a pulse and couldn't find one while at the same time keeping a knee on Floyd's back to hold him down.

PHOTO: This combination of photos provided by the Hennepin County Sheriff's Office in Minneapolis on June 3, 2020, shows from left, former Minneapolis police Officers J. Alexander Kueng, Thomas Lane and Tou Thao. (Hennepin County Sheriff's Office via AP, FILE)
PHOTO: This combination of photos provided by the Hennepin County Sheriff's Office in Minneapolis on June 3, 2020, shows from left, former Minneapolis police Officers J. Alexander Kueng, Thomas Lane and Tou Thao. (Hennepin County Sheriff's Office via AP, FILE)

Rahmani said Thao might not want to testify because Minneapolis city records show there were six complaints filed against him during his roughly 11 years on the force. He was also the subject of a 2017 federal lawsuit accusing him and another officer of excessive force. The lawsuit was settled for $25,000.

Prosecutors, according to Rahmani, could possibly use Thao's record as a police officer to impeach his testimony.

MORE: Derek Chauvin pleads guilty to federal charges of violating George Floyd's civil rights

But Brian Burkmire, a New York public defender and ABC News contributor, said Lane's decision to take the stand could backfire on him.

"You're going to hear that he's a man of compassion, that he's the one who asked to get help for George Floyd, he's the one who wanted to turn him over, he's the one who went into the ambulance," Burkmire said. "But in a federal case, the federal charges are less about what he did and more about what he didn't do."

Burkmire added, "What I would be worried about in the cross-examination is the prosecutors asking, 'So, you recognized something was wrong, then why didn't you do more?' I think that part of the cross-examination, while it may not convict him, it might be very damning."

Former cop's plan to testify could throw wrench into federal trial over George Floyd's death: Experts originally appeared on abcnews.go.com

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