Judge Will Not Admit Some Evidence About George Floyd’s Criminal History in Trial

September 12, 2020 Updated: September 13, 2020

The judge in the trial against four ex-Minneapolis police officers who stand accused of George Floyd’s murder—or in its aiding and abetting—will not allow as evidence some records of Floyd’s history, specifically a prior conviction for aggravated robbery with a deadly weapon.

Attorney Eric Nelson, who represents Derek Chauvin, the former officer who knelt on Floyd’s neck before he died, filed a motion on Aug. 28 (pdf) for the admission of evidence relating to several incidents, including one in 2019 in which Floyd admitted to “daily” drug use and another in which he was allegedly involved in selling illegal drugs and, when approached by police, “placed drugs in his mouth in an attempt to avoid arrest, and swallowed them.” The motion states that when Floyd interacted with the officers, “he engaged in diversionary behavior such as crying and acted irrationally.”

Another incident listed in the motion dates back to a case in Texas in 2007, which involved a robbery at gunpoint. The motion includes the statement that “in the course of the robbery Mr. Floyd placed a gun on a woman’s abdomen, allowed her to be pistol whipped by an accomplice and demanded drugs and money,” noting Floyd’s conviction for aggravated assault with a deadly weapon.

At a hearing Sept. 11, Hennepin County District Court Judge Peter Cahill rejected the admission of the evidence from the Texas robbery, according to WCCO.

“What possible relevance could that have?” Cahill said of the defense’s motion to include the evidence, according to the report.

Chauvin is charged with second-degree murder, third-degree murder, and manslaughter. Thomas Lane, J. Kueng, and Tou Thao are charged with aiding and abetting both second-degree murder and manslaughter.

Derek Chauvin kneels on the neck of George Floyd
Minneapolis police officer Derek Chauvin kneels on the neck of George Floyd, a handcuffed man who was pleading that he could not breathe, in Minneapolis, Minn., on May 25, 2020. (Darnella Frazier via AP)

It wasn’t immediately clear whether evidence relating to the incident involving Floyd swallowing drugs when confronted by police would be admitted. Kelly Keegan, an attorney not connected to the case, told The Associated Press that prior incidents can’t be brought up in court just to smear people, and a judge must weigh whether the information will help the jury find facts or just leave a negative impression.

Defense attorneys said that on May 25, the day Floyd died, he behaved in a similar way to past incidents involving drugs and interactions with police. Body-camera footage from that day shows Lane and Kueng approaching a panicked Floyd, who says, “I’m not a bad guy!” and struggles, begging not to be put in a squad car. Earl Gray, Lane’s attorney, wrote in documents requesting dismissal, that the video shows Floyd had something in his mouth that looked like a fentanyl pill, which disappeared. Autopsy reports show Floyd had fentanyl in his system.

Both Gray and Nelson, Chauvin’s attorney, wrote that during a May 2019 arrest, Floyd wouldn’t listen to officers’ commands, put something in his mouth, had to be physically removed from a vehicle, then began to cry. In that case, several opioid pills were found, along with cocaine, they wrote.

Nelson compared Floyd’s behavior in both arrests, saying: “Clearly, Mr. Floyd had a modus operandi in the way he acted when approached by police officers while attempting to conceal narcotics.” Gray wrote that Floyd shares the blame for his death.

“All he had to do is sit in the police car, like every other defendant who is initially arrested,” Gray wrote. “While attempting to avoid his arrest, all by himself, Mr. Floyd overdosed on Fentanyl. Given his intoxication level, breathing would have been difficult at best. Mr. Floyd’s intentional failure to obey commands, coupled with his overdosing, contributed to his own death.”

Ben Crump, an attorney for Floyd’s family members, told a crowd gathered outside the courthouse that defense filings highlighting Floyd’s drug use amount to killing him a second time.

“They are trying to claim some asinine theory about an overdose. I want to be clear about this. The only overdose that killed George Floyd was an overdose of excessive force and racism by the … Minneapolis Police Department,” Crump said.

“Who are you going to believe, your eyes or these killer cops?” he said.

The county medical examiner classified Floyd’s death as a homicide, with his heart stopping while he was restrained by police and his neck compressed. A summary report listed fentanyl intoxication and recent methamphetamine use under “other significant conditions” but not under “cause of death.”

According to prosecutors’ notes, Hennepin County Medical Examiner Andrew Baker told prosecutors that absent other apparent causes of death, it “could be acceptable” to rule the death an overdose, based on the level of fentanyl in Floyd’s system. A separate autopsy commissioned for Floyd’s family concluded he died of asphyxiation due to neck and back compression.

The Associated Press contributed to this report.

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