Legal analysts weigh in on potential impact of COVID trial delay

The federal trial of three former Minneapolis Police officers was paused on Wednesday after one of the defendants tested positive for COVID-19. He was tested immediately upon arriving at the courthouse in the morning, according to court officials.

Tou Thao and J. Alexander Kueng were both in the courtroom to start the day. Thomas Lane was absent. Court officials are not identifying which defendant tested positive.

The trial is expected to resume on Monday.

“It doesn’t surprise me with Judge Magnuson,” said Tom Heffelfinger, a former U.S. Attorney. “I’ve tried a lot of cases in front of him and I know he feels personally very responsible for the health and safety of the people in his courtroom, especially the jurors.”

RELATED: Federal trial of former Minneapolis officers in recess until Monday due to positive COVID case

At a pre-trial hearing in January, Judge Paul Magnuson told the court he hoped for a speedy trial to limit the potential COVID could affect proceedings.

“He’s going to give the lawyers on both sides the opportunity to try their cases, however, he’s not going to put speed and efficiency over the health of the people in his courtroom, especially the jurors,” said Heffelfinger. “That’s why I say, I would not be surprised if there’s another break and there really is no limit on those kinds of issues, the judge makes the decision himself and that’s why he wears the black robe.”

Before the trial can continue, the defendant who tested positive will be re-tested along with “all case participates within close proximity” of the defendant, according to a court spokesperson. 

“I don’t think [the delay] has any impact or means anything other than they’re taking a break to ensure everybody’s healthy,” said Heffelfinger. “I don’t think it’s going to have any significant impact either for either side.”

He expects both sides will use the next few days as additional trial preparation.

University of St. Thomas Law Professor Mark Osler agrees. He is also a former federal prosecutor.

“It’s going to be really welcome at least to some of the attorneys to have this additional time in the middle, almost a halftime in a football game where you can reassess your strategy, decide what’s working and what’s not working, perhaps change things up,” said Osler. “For the defense, perhaps it allows them to alter and prepare their witnesses to what they’ve heard so far in the trial, to recalibrate what they may want to say.”

Osler believes the additional days away from court may benefit the defense. The attorneys for the ex-officers will present their cases after the prosecution.

“I think that the government has more to worry about, that the jury will lose the trail of testimony that they’ve provided so far and that the defense presentations will be closer to when they’re making that actual decision,” he explained.

The U.S. Attorney’s team has called at least 11 witnesses so far, including bystanders on the scene at 38th and Chicago, an MPD Inspector, and the Chief Hennepin County Medical Examiner. An out-of-town doctor was expected to take the stand on Wednesday.

Osler said the trial delay could affect the upcoming witness lineup.

“It could be that people who thought they were going to be called this week are going to be called next week and that may mess up their schedule but I expect that [if] they’re under subpoena, they’re probably going to have to show up whether it’s next week, or the week after,” said Osler.

Attorneys for Thao and Kueng did not comment on the trial disruption. Lane’s attorney Earl Gray declined to say whether his client has COVID, according to the Associated Press.

The federal courtroom has COVID precautions in place, including Plexiglas dividers. Each legal team is seated at their own table and masks are required, except for attorneys and witnesses during direct or cross-examination.

Trial participants must answer a COVID symptom questionnaire at the start of each day. An individual is tested right away if they have been in close contact with a COVID-positive person or develop symptoms, according to court officials.

The defendant was tested on-site, immediately upon arrival, according to a court spokesperson.