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Minnesota’s Outdated Ethics Rules Might Allow Insiders to Smear Derek Chauvin’s Shot at a Fair Trial without Facing Consequences


Derek Chauvin, Tou Thao, J Alexander Kueng, and Thomas Kiernan Lane mugshots

A major leak in the case against Derek Chauvin, one of the four former Minneapolis police officers accused of acting in concert to murder George Floyd, highlights several important gaps and omissions in two underlying Minnesota ethics rules which would otherwise govern the behavior of the alleged leakers — if they are attorneys.

The leak, according to a recent New York Times report, was that lead defendant Chauvin stood poised to plead guilty to third-degree murder; former U.S. Attorney General William Barr, the report said, stepped in and killed the deal. Three anonymous “law enforcement officials” reportedly provided the information; their identities are unknown.

Attorneys representing three of the officers — Tou Thao, J. Alexander Kueng, and Thomas Lane — have asked a judge to punish prosecutors for overseeing their respective cases on account of the leak.

Thao’s attorneys, Robert M. Paule and Natalie R. Paule, filed a motion Monday which asks a judge to dismiss the charges against Thao without allowing prosecutors any wiggle room to re-file the case in the future. They also asked for a litany of other sanctions, including a judicial order to ban whoever leaked the material from participating in Thao’s trial and a ban on allowing outside lawyers to participate in the case. Naturally, they’ve also asked for an order banning jurors from serving on the case if such jurors have heard the leaks.

Thao’s attorneys rooted his claim in the Sixth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 6 of Minnesota’s state constitution. Those provisions both guarantee criminal defendants the right an “impartial jury.”

Kueng’s attorney, Thomas C. Plunkett, followed with a similar motion on Tuesday. Lane’s attorney on Wednesday asked to join the arguments of Kueng and Thao.

The documents, when read together, accuse Minnesota Attorney General Keith Ellison and prosecutors Matthew Frank and pro bono Special Assistant Attorney General Neal Katyal of various forms and levels of misconduct under Minnesota case law and the state’s Rules of Professional Conduct.

From Thao’s motion:

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.

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.

Kueng’s motion more broadly accuses government actors of “wall of prosecutorial misconduct” involving both the leak and other matters. It ascribes nefarious motives to Ellison for failing to personally participate in a court hearing after stating in an email that he “would be personally present at a meeting immediately following the hearing.” From the document:

Mr. Ellison’s late decision to absence himself from the hearing suggests he knew about and may have been personally involved in developing the strategy to cheat the Defendants out of their rights to due process. Mr. Ellison distanced himself and did nothing to intervene or correct the course of the State’s ill-intentioned ship.

The documents are embedded below for those who wish to read the concomitant accusations and arguments in full.

Minnesota ethics rules lack clarity on the matter. The language of the requisite rules contain key departures from similar rules in other states which either directly forbid or highly discourage leaks about possible plea deals from taking place. While Minnesota’s rules and case law arguably apply to the situation at hand, they could be better written to warn prosecutors and law enforcement officials that the conduct alleged by the former officers’ defense teams is clearly unethical.

As the defense teams pointed out, revealing that a defendant is considering a guilty plea is a serious ethical matter. Plea offers and plea talks are normal parts of almost every single criminal trial; attorneys weigh the factual strengths and weaknesses of cases against the relevant law, and prosecutors generally promise to recommend more lenient punishments in return for the defendant’s admission of guilt. As the agreement documents themselves point out, the final decision is up to a judge; however, judges tend to reward defendants who save the public the expense of a trial and agree to cooperate with prosecutors. Plea deals are more likely in cases where facts are not in dispute.

The plea negotiation process, which commonplace, is not something the average juror needs to see or know. The reason is simple. The average hypothetical juror is summoned to court and ordered to sit in a chair of judgment. If she is told (or otherwise learns) that the same defendant who demands her impartiality has actually considered or even wanted to admit guilt, she will likely be irritated that her life-disrupting presence was even necessary: “Why I am even here?” She would probably also convict: “If he wanted to admit his guilt, why should I let him free?”

The American Bar Association’s Model Rules of Professional Conduct recognize this logical reality. The Model Rules are not the law; they are a guide or pattern most states use while building their own laws to govern the conduct of attorneys. Model Rule 3.6, which governs pretrial publicity, generally bans comments to the press that “will have a substantial likelihood of materially prejudicing an adjudicative proceeding” (e.g., a trial).  Simply put, attorneys aren’t supposed to say things to the press that will likely and improperly influence a jury.

The rules strike a difficult balance between the First Amendment rights of attorneys and of the press and a defendant’s Sixth Amendment right to a fair and impartial jury. Therefore, exceptions exist. For instance, attorneys are generally allowed to discuss the basic charges each defendant faces, to provide scheduling details (e.g., when a hearing or trial will occur), to ask for public help in finding people or information, and to relay information contained elsewhere in the public record. Attorneys regularly do discuss these matters with the press because they don’t cut to the heart of the factual matter a jury may eventually be empaneled to decide.

But there are also danger zones contained in the official comments to Model Rule 3.6 which attorneys are cautioned to avoid. These “certain subjects . . . are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to . . . a criminal matter.” Plea talks are one such subject. As the comment states, “the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person’s refusal or failure to make a statement” are likely to influence possible jurors. If attorneys were to discuss pleas or confessions with the press prior to a trial, then the result is a “practical nullification of the protective effect” of other rules, such as the Sixth Amendment and the rules of evidence, which are designed to produce fair results.

Many states have adopted the Model Rules in whole or in part. Many have tweaked Rule 3.6 to either presumably or arguably alter the rule’s interpretation.  Remember, the ABA Model Rule contains three moving parts: a binding general prohibition on comments to the press that could tarnish a proceeding; a binding series of safe harbors which are areas of low risk; and a recommended series of danger zones which carry a high risk of making a mess of a trial.  Iowa, Vermont, New JerseyPennsylvania, and Massachusetts follow the general flow of ABA Rule 3.6 with minor or zero alterations. Several other states — including WisconsinNew York, and New Hampshire — moved the danger zones into the actual rule. That gives a disciplinary tribunal a clearer ability to punish an attorney who spreads word of a defendant’s plea talks to the press. Connecticut adopted the core prohibition but moved both the safe harbors and the danger zones to the comments section — making them persuasive, but not binding, in a disciplinary proceeding against a lawyer accused of a violation. The nuances are the stuff of wonderful debates among lawyers, but the consensus among all these rules is that attorneys are either expressly prohibited from or are strongly cautioned against talking about plea deals in cases that may likely go to trial.

Minnesota’s rule is different. Last amended in 2005, Minnesota Rule 3.6 contains no warning whatsoever that a comment about a defendant’s plea will either automatically or likely trigger an ethics probe. Rather, the rule blandly forbids statements which have a “substantial likelihood of materially prejudicing a jury trial.”  That’s open to interpretation. The aforementioned rules are more clear.

In Minnesota, the usual safe harbors and danger zones are noticeably lacking. (The ethics rules of Minnesota’s neighbors to the west, South Dakota and North Dakota, also do not explicitly ban attorneys from commenting on a defendant’s plea talks; nor do the rules of Washington, D.C.).

Thus, Minnesota’s rule provides North Star State authorities a less than certain chance of penalizing precisely the conduct about which three of the George Floyd defendants have complained.

Other Minnesota rules are also similarly unclear.

ABA Model Rule 3.8 says prosecutors must refrain from “heightening public condemnation of the accused.” It also says prosecutors are required to “exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.”

To the contrary, Minnesota’s Rule 3.8 suggests — but does not require — that prosecutors refrain from making pretrial comments to the press which have a “substantial likelihood of increasing public opprobrium of the accused.” The supervisory control prosecutors — as chief law enforcement officers — must exercise over their subordinates is also watered down vis-à-vis the ABA Model Rule. In Minnesota, prosecutors must only seek to temper the comments of those “over whom the prosecutor has direct control.”

In one 1969 case cited by Thao’s defense team, the Minnesota Supreme Court chastised a prosecutor, a sheriff, and other police officers who told reporters that a defendant confessed to “the knife and butcher cleaver attacks” with which he was charged and made other public suggestions about the defendant’s possible motives.

“[W]e cannot condone the actions of those associated with the prosecution in making available for publication the kind of out-of-court statements made by them which this record reveals,” Associate Justice Walter F. Rogosheske wrote for the unanimous five-member court.  “Undoubtedly these statements were made without intending to influence the outcome of defendant’s forthcoming trial, but they seriously threatened to have that effect upon prospective jurors residing in the community. It is difficult to believe that such statements serve any significant law-enforcement function. In addition, it is now agreed not only by those associated with the prosecution and defense, but also by the news media, in this and a host of other jurisdictions, that such out-of-court statements made at or near the time of arrest should not be made public unless they are necessary for the protection of public safety or serve a significant law-enforcement function.”

The court in that case upheld the conviction because the defendant pleaded guilty and only complained about his treatment several years afterwards.

The judge in the cases involving the four George Floyd officers has yet to rule on these issues. If prosecutors are found to have leaked the reported plea deal to the New York Times, punishment might be possible under Minnesota’s ethics rules — assuming the leaker is a Minnesota attorney or has otherwise filed an appearance in Minnesota courts — but it is less of a certainty than it would be in other states whose rules have stronger teeth.

Kueng Motion for Dismissal … by Law&Crime

Thao Motion for Dismissal a… by Law&Crime

[image via the Law&Crime Network/mugshots from Minneapolis area jails]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.