Death of George Floyd: Closing arguments submitted in Tou Thao's trial

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Tou Thao (Hennepin County Jail)

MINNEAPOLIS (FOX 9) - The future of the fourth and final former Minneapolis police officer charged in George Floyd's death is now in the hands of a judge.

Closing arguments in Tou Thao's trial in Floyd's killing were submitted on Tuesday to Judge Peter Cahill.

Last fall, Thao opted for a rare stipulated-evidence trial in which a judge decides the case without the questioning of witnesses and testimony in a courtroom. With that, closing arguments were submitted in writing.

Thao was not one of the officers who were on top of Floyd, holding him down. He was instead on crowd control, as angry citizens demanded the officers get off Floyd as he struggled to breathe.

For his defense, Thao's attorneys argue that he suggested an alternative form of restraint and took steps to get medics to the scene "as quickly as possible."

When Thao took over crowd control, as bystanders started to gather, his attorneys argue his focus was on the crowd -- not what was happening behind him. Adding, that he did not have reason to suspect Floyd had stopped breathing because the officers had rolled him over to perform CPR -- which is what they say officers are trained to do when a subject doesn't have a pulse.

Attorneys also argue that Thao had been trained at the academy to use a restraint similar to how Chauvin was positioned on Floyd, including examples from his training.

"Thao’s actions were directly in accordance with exactly what MPD trained him to do when a person is suspected of experiencing excited delirium," the defense argues. "His intent was to follow his training and MPD policy. He observed other officers following the training MPD had given them. What he saw was exactly what MPD trained their officers to do in this situation."

"The death of George Floyd was a tragedy. Yet the fact that a tragic death occurred does not transfer it into a criminal act," the defense concludes. "Thao is innocent of the charges against him because he did not intend that his specific actions were done to assist in the commission of a crime."

Prosecutors however argue that by not intervening and preventing others from doing so, Thao is liable for Floyd's death.

"The State need not prove that an accomplice’s intentional aid was actually 'effective in aiding the primary actor,'" prosecutors write, citing precedent. "It is thus no defense against criminal liability for an accomplice to argue his intentional aid was not meaningful. In the context of aiding and abetting manslaughter in the second degree, the State also need only prove that the accomplice knew about and intentionally aided the principal’s objectively grossly negligent act. The State need not prove that the accomplice knew and intended a death to occur."

Prosecutors also point out that, at times, Thao is seen on video watching his fellow officers improperly restraining Floyd, which they say dispels any argument that Thao wasn't aware of what they were doing. The prosecution also says that Thao was trained to know what Chauvin was doing was wrong.

"Based on his own training, Thao also knew that the restraint grossly deviated from the standard of care and risked death. Like all MPD officers, Thao was trained on the importance of using the side recovery position to alleviate the risk of positional asphyxia—including for a person believed to be suffering from excited delirium," argues the prosecution. "Thao was regularly trained on CPR and the importance of providing CPR as quickly as Thao was trained to use only proportional force, to de-escalate force, and to cease using force on someone who is unconscious or pulseless. And Thao knew that Chauvin was not using a trained neck restraint and that Chauvin continued to use that untrained neck restraint even after Floyd was no longer resisting, speaking, or moving."

The judge now has 90 days to reach a decision in the case. Derek Chauvin was convicted of murder nearly two years ago in the case while co-defendants Thomas Lane and J. Alexander Kueng both pleaded guilty to aiding and abetting manslaughter. Kueng was sentenced in December to 42 months in prison.

Thao is already serving time on federal charges related to Floyd's death after he, along with Lane and Kueng, was convicted of depriving Floyd of his civil rights.

Earlier this month, attorneys for Derek Chauvin, who is serving 22.5 years behind bars, argued for his verdict to be thrown out.