Sentence, state trial loom for ex-cops in Floyd’s killing

Three former Minneapolis police officers convicted of violating George Floyd’s civil rights face federal sentences that one expert says could range from less than five years in prison to as much as the 25 years prosecutors are seeking for their former colleague Derek Chauvin.

A comprehensive process to determine that could take months. Meanwhile, the officers have a right to appeal their convictions, and they face a state trial in June for allegedly aiding and abetting murder and manslaughter. A federal investigation into the Minneapolis Police Department is also ongoing.

Here’s a look at what’s next:

WHAT HAPPENED?

After a monthlong trial, a federal jury on Thursday convicted former Minneapolis officers Tou Thao, J. Alexander Kueng and Thomas Lane of violating Floyd’s civil rights.

All three were convicted of depriving Floyd of his right to medical care as the 46-year-old Black man was pinned under Chauvin’s knee for 9 1/2 minutes on May 25, 2020. Kueng knelt on Floyd’s back, Lane held his legs and Thao kept bystanders back. Thao and Kueng were also convicted of failing to intervene to stop Chauvin during the killing, which was caught on video and sparked protests around the world.

Chauvin was convicted last year on state charges of murder and manslaughter and was sentenced to 22 1/2 years in prison. He later pleaded guilty to federal civil rights violations.

NOW WHAT?

The federal probation office will conduct a pre-sentence investigation, which involves interviewing defendants and gathering investigative materials from the government, said John Marti, a former federal prosecutor.

The defendants’ histories, educations, criminal records, financial histories and family situations are among the factors that will be considered, Marti said. Probation officials will then look at federal guidelines to make preliminary determinations about potential sentences.

Defense lawyers and prosecutors can object, and if there are factual disputes, the judge will hold an evidentiary hearing. He’ll ultimately make the final decision on guidelines and the sentence.

The process can take months. Chauvin pleaded guilty in mid-December and no sentencing date has been set. In one recent Minnesota case involving a defendant convicted in a mosque bombing, the sentencing happened nine months later.

WHAT COULD THEY FACE?

Jurors determined that the officers’ offenses resulted in Floyd’s death, and that finding opened the door for a longer sentence.

A federal civil rights violation that results in death is punishable by life in prison or even death. But the death penalty isn’t an option in this case because prosecutors would have had to have sought the attorney general’s permission and gone through a review process before the trial, and they didn’t.

That means life would be the maximum, but such sentences are rare in civil rights cases. Complicated formulas for the federal guidelines indicate that the officers would get much less.

WHERE IT GETS COMPLICATED

The guidelines can be calculated in different ways. There are sentencing guidelines for the civil rights offenses the men were convicted of, but those offenses could also be cross-referenced with another crime — such as murder — and the guidelines for those other crimes could be used, said Mark Osler, a former federal prosecutor and professor at the University of St. Thomas School of Law.

“If they don’t cross-reference, the guideline range is likely to be under five years,” Osler said. “If they do cross-reference, it’s likely to be the same as what Chauvin got.” Chauvin’s plea agreement calls for 20 to 25 years and says that a “base offense level” of second-degree murder was used to calculate that range.

The “guideline score” from the probation office doesn’t bind the judge, but it’s “anchoring” and is usually what a judge will rely on, Osler said.

Whether or not the underlying offense is cross-referenced with murder “will matter more than anything else” in figuring out the defendants’ potential sentences, Osler said.

Marti agreed the underlying offense will be an issue of debate. He said Chauvin pleaded guilty to causing Floyd’s death, but “he was the killer.” As for the others, the jury found that Floyd died because they failed to do what they were required to, and the court must evaluate their culpability.

“I think the law and the guidelines are going to advise that they receive a sentence less than Derek Chauvin, but ultimately it’s going to be up to the court,” he said.

CAN THEY APPEAL?

Absolutely, and Marti predicts they will: “This is the one bet that’s 100% certain,” he said.

The defendants can also file post-verdict motions asking for a new trial or for the judge to set aside the jury’s verdict. Defense attorneys laid the groundwork for such motions and for an appeal throughout the trial as they made objections.

Attorneys for Lane and Kueng declined to comment when asked about their next steps. An attorney for Thao did not respond to a Friday message.

STATE TRIAL

All three men face charges of aiding and abetting both murder and manslaughter in state court. That’s set for June.

Osler said it’s possible the parties could avoid a trial and agree to wrap the state case into the federal sentence.

“There could be basically a settlement that incorporates a joint recommendation for the federal sentence and a plea and anticipated settlement in the state case,” he said.

But Marti believes the state trial will proceed. He said if the three former officers enter a plea in state court, it would undermine any federal appeals. He also said the defense attorneys are not the type to back down unless there was an offer from the state and federal governments for minimal punishment, and he doesn’t think either would offer leniency.

John Stiles, a spokesman for Attorney General Keith Ellison, said: “We’re preparing for a June state trial as planned.”

OTHER INVESTIGATIONS

The Minneapolis Police Department is still the subject of two separate investigations. A federal one is examining whether the agency has a pattern or practice of unconstitutional or unlawful policing. That investigation was said to be looking at use of force, the handling of misconduct allegations and the department’s current system of accountability, among other things.

The Minnesota Department of Human Rights is looking into the police department’s policies and practices over the past decade to see if it engaged in systemic discriminatory practices. A message inquiring about the status of the state investigation was not returned Friday.