Short Take: Katyal, For The Prosecution

As the defense lawyers for the four cops charged with the killing of George Floyd make their motions, a surprising voice appeared in opposition, buried deep in the bowels of the New York Times story.

Prosecutors rejected suggestions that Mr. Chauvin — or any of the other former officers — could shift blame away from the larger group.

“The defendants watched the air go out of Mr. Floyd’s body together,” said Neal Katyal, a special assistant attorney general who is part of the prosecution team, led by the office of Keith Ellison, the Minnesota attorney general. “And the defendants caused Mr. Floyd’s death together.”

No, not former deputy chair of the Democratic National Committee, Keith Ellison, who won his term as attorney general fair and square.

Neal Katyal. Yes, that Neal Katyal. Former acting solicitor general of the United States under President Obama, now a partner at Hogan Lovells and a regular commentator at MSNBC. As a member of that elite group of Supreme Court litigators, he’s made a significant mark.

Neal has extensive experience in matters of patent, constitutional, technology, securities, criminal, employment, and tribal law. He has orally argued 41 cases before the Supreme Court of the United States, with 39 of them in the last decade. In the 2016-17 term alone, Neal argued seven cases in six separate arguments at the Supreme Court, far more than any other advocate in the nation – nearly 10% of the docket. His 2017 win in Bristol Myers Squibb v. Superior Court was a landmark victory for personal jurisdiction law.

Yet here he is, in Minneapolis, as a “special assistant attorney general who is part of the prosecution team.”

The argument by the defense is that the four cops will offer antagonistic defenses, thus pitting one against the other as well as against the prosecution at trial. In determining whether each cop gets a separate trial, this is a critical argument.

The lawyers for Mr. Lane and Mr. Kueng — the least experienced officers — have focused blame on Mr. Chauvin. Another officer, Mr. Thao, has argued that he was mostly a bystander, keeping onlookers away from the scene as the other officers tried to arrest Mr. Floyd.

In Mr. Chauvin’s motion, his lawyer noted that both Mr. Lane and Mr. Kueng had been on the scene longer, struggling to arrest Mr. Floyd, who appeared to be in the throes of a panic attack, refusing to enter the back of the police cruiser and saying he was claustrophobic.

“Mr. Chauvin could reasonably argue that it was the inaction of Lane and Kueng,” by not calling paramedics sooner or de-escalating the situation, “that caused George Floyd’s death,” Mr. Nelson wrote.

The question isn’t, at this stage, who is right, but whether each can present their defense against the prosecution’s charge without having their co-defendant stick a knife in their back in furtherance of their own defense. No matter what anyone tells you, even cops charged with murder should be afforded due process and given a full and fair opportunity to present their defense without being attacked from in front and behind.

So what does the special assistant attorney general, the big time Washington Supreme Court former acting solicitor general, who has vast experience in 37 flavors of law, crim law somewhere on the list, have to contribute?

The defendants watched the air go out of Mr. Floyd’s body together.

Unfortunately, there is no Latin phrase or black letter legal doctrine that makes this sound any more lawyerish. But Katyal’s involvement suggests the prosecution is doing everything it can to make sure it gets the convictions it must, putting the “big legal gun” on the team to assure that George Floyd’s killers don’t walk, as many anticipate might very likely be the outcome despite the public’s certainty of guilt.

11 thoughts on “Short Take: Katyal, For The Prosecution

  1. Jay

    Now now don’t be jealous.

    By the way, you forgot the likelihood that they hired him so he wouldn’t be out there against them, like the OJ team and the Dersh.

    Reply
    1. SHG Post author

      I’ve never dreamed of being a prosecutor, Jay. Frankly, I’m a bit surprised your head would go there. Maybe you just want to know what it feels like to win for once?

      Reply
      1. rsf

        Being a prosecutor isn’t bad. You should give it a try if you enjoy long hours, low pay, a general lack of appreciation, politics, and excessive stress. Or, you know, stay as a defense attorney where you get to be your own boss and have 1/5 the caseload. There are reasons I made the switch this year after all.

        Reply
        1. SHG Post author

          It’s not my fault you chose poorly. As I tell young lawyers, we prosecutors as much as defense lawyers, both serving an honorable role in a viable legal system (not that they seem all that interested these days).

          Reply
          1. rsf

            I’m glad I no longer have to try and train the incoming baby prosecutors. They are not as capable of independent thought and critical thinking as I desired. Too often they enter the profession with an us vs. them mentality that serves no one and a refusal to reconsider it.

            Reply
  2. orthodoc

    if i read professor (and i think as well “Rabbi”) Michael Broyde correctly, assisting the government in the prosecution of criminals when it is not your job, is considered by the talmud to be unethical, if not impermissible (Practicing Criminal Law: A Jewish Law Analysis of Being a Prosecutor or Defense
    Attorney, 66 Fordham L. Rev. 1141 (1998).) it certainly is unseemly

    the other thought, prompted by Jay’s remark above, is that the analogy to the simpson case is the decision then to try the case in LA, and not Santa Monica. The idea, if i recall, was that this would allow the mayor to say “if even an LA jury would convict, OJ must really be guilty, so please don’t burn down the city.” maybe the city fathers in minneapolis are hoping to inoculate themselves against a not- guilty verdict saying “even katyal couldn’t convict–please don’t burn down [what’s left of] the city”

    Reply

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