Virus, Protests And Appeals Could Shape Chauvin Trial

By Cara Bayles | March 5, 2021, 4:10 PM EST

Workers install barbed wire on fencing outside the Hennepin County Government Center in Minneapolis as part of security preparation for the trial of former Minneapolis police officer Derek Chauvin, which starts Monday. (AP Photo/Jim Mone)

Jury selection is set to begin Monday in what could be the most closely watched murder trial in decades, as prosecutors seek to convict former Minneapolis police officer Derek Chauvin for the killing of George Floyd.

Finding jurors who are blank slates could prove impossible. Perhaps the most damning piece of evidence against Chauvin has already been viewed by millions of people. The infamous cellphone video showed the defendant pinning Floyd's neck for more than eight minutes, as his victim — who was being arrested for allegedly using a counterfeit $20 bill — begged him to stop, said he couldn't breathe, and lost consciousness.

The image of a Black man gasping for breath under the knee of a white officer rekindled a nationwide racial justice movement last summer, and it became so ubiquitous that a jury questionnaire for Chauvin's upcoming trial asked not only if potential jurors had seen the video, but if they'd seen it once, two or three times, four or five times, or more than six times.

While the story of Floyd's killing in May is well known, how it's been dealt with in Minnesota's Hennepin County District Court hasn't grabbed as many headlines. The case has already spurred squabbles between defense attorneys and prosecutors as well as several reversals from Judge Peter Cahill on what charges Chauvin should face, whether he should be tried with his fellow officers, and how much information the public should have access to. Several of those questions went to a state appellate court.

As jury selection begins, here are the five biggest issues that have come up in the case over the past nine months.

A Lesser Charge

For months, there's been debate over what charges Chauvin should face, and a third-degree murder charge — which carries a lesser sentence but may be easier to prove — seemed to be off the table until the Friday before trial, when an appellate court revived it.

When the Hennepin County Attorney's Office first filed a complaint against Chauvin in May, critics decried the third-degree murder and second-degree manslaughter charges as too weak.

Days later, Minnesota Attorney General Keith Ellison took over the case and added a second-degree murder charge against Chauvin. 

Judge Cahill dismissed the third-degree murder charge in October, finding that Chauvin's actions didn't meet the relevant state law's requirement that a defendant endangered other people besides the victim.

That was a blow to the prosecution, according to Kenneth Nunn, a law professor and assistant director of the Criminal Justice Center at the University of Florida. Third-degree murder carries a much lower burden of proof than second-degree murder, which requires showing that the death occurred while the defendant was trying to commit another crime — in Chauvin's case, assault.

A third-degree murder charge only requires that the defendant acted recklessly, Nunn said.

"Proving recklessness or negligence is much easier," he said. "If you don't have that, it's going to be very difficult to get a murder charge."

Prosecutors sought to reinstate the third-degree murder charge last month, citing a recent change in the law that stemmed from another police shooting case.

Officer Mohamed Noor — who was convicted for killing Justine Ruszczyk, a woman who startled him when she knocked on the window of his squad car — appealed his third-degree murder conviction, arguing his case didn't meet the requirements for the charge because he "directed his actions at a particular person." An appellate court rejected that argument, finding Minnesota state law "does not require that more than one person be put in jeopardy."

Prosecutors in the Floyd case tried to use that ruling to reinstate the third-degree murder charge against Chauvin. But Judge Cahill found the Noor decision wasn't binding, and he denied the request.

The state appealed, and on Friday, an appellate court sided with prosecutors, finding that the district court erred by not applying Noor because "a precedential opinion of this court is binding authority upon its filing." The appellate court reversed Judge Cahill's decision and remanded the issue to the lower court for reconsideration. It was unclear Friday whether Chauvin would appeal to the state Supreme Court, which could delay the trial.

To Kami Chavis, a law professor at Wake Forest University, former federal prosecutor and police accountability expert, second-degree murder seemed like the more appropriate charge in Chauvin's case anyway. It carries a 40-year sentence — compared with 25 years for third-degree murder — and only requires a finding that Chauvin was committing felony assault, not that he intended to kill Floyd. But prosecutors will only get one chance to convict him, and they want an array of verdicts available to the jury.

"It's a double jeopardy issue," Chavis said. "You've got to bring all your charges related to this event at one time. That's a pretty well-known precept in criminal law. The strategy is probably not a bad one."

Jury Selection

The questionnaire sent to prospective jurors in December includes 14 pages of queries, ranging from the typical — inquiring about jurors' education, the media they consume, and hardships that would make it difficult to serve — to less conventional questions about whether they have martial arts training and their support for the Black Lives Matter movement and the "blue lives matter" counter-movement.

"Did you participate in any of the demonstrations or marches against police brutality that took place in Minneapolis after George Floyd's death?" the questionnaire asks. "If you participated, did you carry a sign? What did it say?"

Floyd's killing fueled a reckoning over racial inequity and police reform, as well as a backlash after protests resulted in property damage and were decried as "looting." That polarization will guide the jury selection process, according to Roy Futterman, director of trial practice at the legal consulting firm DOAR.

Futterman said the potential jurors who are most ideological will easily get struck for cause. But among those who don't broadcast their political leanings, there may be other tells that each side will look for when it's time to use the peremptory challenges that allow attorneys to dismiss a limited number of would-be jurors without stating why.

"The prosecution side wants to find jurors based on the neighborhoods they live in and what jobs they have, to figure out who is more socially liberal. The defense side is going to be looking for socially conservative people, who tend to be higher income, older, people who have a psychological feeling of 'I need to keep my family and my belongings safe,'" he said. "Both sides will try to focus on demographics to make their decisions."

The defense would likely favor an all-white jury, Futterman said, while prosecutors will prefer a more diverse one. So both sides will likely look carefully at the other's peremptory strikes to see if they can be challenged under Batson v. Kentucky, a 1986 U.S. Supreme Court ruling that barred using peremptories to eliminate jurors based on their race.

"There's a long racist history of lawyers trying to get Black people off juries," Futterman said. "One of the insidious ways attorneys have done it is to say, 'Has anyone had bad interactions with police?' You tend to get more people of color say, 'Yes, I have.' And then they get struck."

But attorneys can defend their strikes by providing a race-neutral reason for nixing a juror. And in the Chauvin case, the written answers to the extensive jury questionnaire will be key in those defenses, Futterman said.

"They'll be able to point to a question and go, 'No, here's why we challenged this guy. Not because of his race, because of his answer on Question 23,'" he said. "There's going to be a lot of attorneys bending over backwards to make it clear they're not just going along racial lines."

Pandemic Delays

Both sides have sought to push back the in-person trial, but with little success. Judge Cahill seemed determined to move forward with Monday's start date. 

Chauvin sought a delay in December, arguing that prosecutors had hindered his defense. For each round of evidence disclosures, the state provided one nonsearchable PDF document thousands of pages long, he said, and single exhibits sometimes included several multimedia files of body camera footage. He also alleged that prosecutors blew past the court's evidence disclosure deadline.

Prosecutors balked at the allegation but didn't fight the request for a continuance. In fact, two weeks later, the state sought to delay the trial until the summer, citing concerns about the public health risk of holding a high-profile trial — one likely to spur more demonstrations — during the COVID-19 pandemic.

In January, Judge Cahill denied the request, saying he doubted postponing to June would make much of a difference, given "reports detailing problems with the vaccine rollout." The appellate court sided with Judge Cahill, finding prosecutors hadn't shown that holding the trial in March would "seriously jeopardize" their case.

But the pandemic could affect the trial in subtler ways, according to David Weinstein, a former federal prosecutor and assistant district attorney who now works at Hinshaw & Culbertson LLP. He said the prosecutors in the Chauvin case are far from the only attorneys who have tried to delay a trial of late.

"In most cases throughout the country, the defense is filing motions to continue because, quite frankly, your venire is going to be very small because of the pandemic," Weinstein said, referring to the pool of potential jurors. "And by excluding people who are unwilling to come into a public setting even where you're trying to maintain social distancing, you're not really finding a jury of your peers."

Because the coronavirus has disproportionately affected people of color, and the pandemic-fueled economic downturn has hurt the working class, people who might be willing to serve on a jury right now skew whiter and more conservative, according to recent research from the jury consultant group Dispute Dynamics.

In one survey of 208 Pennsylvania residents, people who disagreed with the Black Lives Matter movement made up only 16% of a sample jury pool, but the vast majority of them were willing to show up for jury duty in spite of the coronavirus. While 66% of all respondents said they'd be willing to serve during the pandemic, 85% of Black Lives Matter detractors said they'd show up for jury duty.

Holding a trial during the pandemic could also mean lawyers miss out on facial cues they rely on, Weinstein said. It will be harder to read jurors' reactions to testimony when their mouths are covered by masks, he said, and it will be difficult for jurors to scrutinize the testimony of witnesses from a greater distance and behind plastic partitions.

One Trial or Two?

In the same January order denying the pandemic delay, Judge Cahill announced he would sever Chauvin's trial from that of the three other former police officers who were on the scene the day Floyd was killed. Chauvin's trial would go on as scheduled in March, the judge said, but the trial for Tou Thao, Thomas Lane and J. Alexander Kueng would be delayed until August.

The court had only recently learned that most of the defendants wanted support staff present during trial, and the courtroom couldn't accommodate that many people under its coronavirus social distancing protocols, the judge said.

The announcement was likely a relief for Chauvin and his attorney, Eric Nelson. They'd argued in September that Chauvin should be tried separately from his co-defendants, noting that while he'd been charged with murder and manslaughter, the three other officers were charged with aiding and abetting those crimes. That meant different evidence and a different legal theory would apply to Chauvin, Nelson said.

He also argued that joining the cases could prejudice Chauvin, especially if "the other three defendants are prepared to place the blame for Mr. Floyd's death squarely on [his] shoulders."

Judge Cahill had not been persuaded by that argument in November, when he granted the state's request for a single trial. None of the former officers had "filed notice of any defense that is antagonistic to ... the other defendants," he said.

He also found the evidence in the four cases was the same, and that the defendants had "worked in close concert with one another" while arresting Floyd.

Plus, the judge said, only having to testify once would "protect witnesses from reliving the trauma of Floyd's death at multiple trials."

Prosecutors argued that none of this had changed in January, after the judge decided to sever the trials due to space constraints. That argument was included in the prosecution's appeal over the pandemic delay, but the appellate court found that severance decisions could be made at the trial court's discretion.

That was a setback for prosecutors, Weinstein said, because it would have been easier to try all the defendants at once. Jurors might have been instructed to only consider the facts relevant to each individual defendant, but "spillover" does occur, and it favors the prosecution, he said. 

If Chauvin is acquitted, it will be harder to convict the other three officers accused of aiding and abetting him. And no matter what the result of Chauvin's trial is, the others will get "a free preview of the case against them," Weinstein said.

"They'll have an opportunity to shape their defense upon the testimony they know is going to come in," he said. "And it makes it a little bit harder to point the finger at him. To some degree, they'll still be able to do it, but he won't be sitting there."

Public Access

With Floyd's killing garnering so much outcry, Judge Cahill has struggled with how to balance the public's desire to know what's happening in the courtroom with his own need to prevent the trial from becoming theater.

Judge Cahill issued a gag order on attorneys in July, noting that defense lawyers had given interviews speculating on the success of their motion to dismiss, and that such pretrial publicity could "risk tainting a potential jury pool" and "impair all parties' right to a fair trial."

Chauvin objected, citing the right of a defendant to "a public trial."

Public figures ranging from Attorney General Ellison to Jon Bon Jovi had referred to Floyd's death as a murder, he said, and the gag order prevented "any mitigating or exculpatory information from entering the public conversation" while allowing "unmitigated condemnation of a criminal defendant by nonparty public officials and celebrities."

The judge relented and vacated the gag order in July.

Then, he ruled in November that the trial would be recorded by a pool producer responsible for broadcasting the proceedings to an overflow room in the courthouse and to media outlets.

That decision came at the request of the defendants in the case. The attorney general's office worried that live coverage could intimidate witnesses and hamper their testimony, and that it also might "alter the way lawyers present evidence."

Media presence will raise plenty of questions about how attorneys conduct themselves at trial, Nunn said.

"Is it going to affect the way that people shape their arguments, who they direct their arguments to? Are they going to be influenced by the fact that there's an audience, as opposed to just speaking to the jury?" he said.

Public attention could slow down the proceedings, Weinstein said. Usually, judges rule on objections rapidly, but "when you know virtually every eyeball in the world could be upon you, you're going to perhaps not be as quick," he said.

That could also affect how jurors think about the case, according to Futterman. While they won't be identified on TV, they'll likely "feel pressure from the community in their own heads," he said.

Racial Justice

One reason Floyd's killing captured the public's attention is that it's not so unusual, Nunn said, and so in a way, the criminal justice system itself will be put on trial.

"All of these police shooting cases involve access to justice," Nunn said. "Fundamentally, what these cases ask you is can the criminal legal system that we have be fair when we are talking about the killing of an African-American man at the hands of a white police officer with the knowledge that many African-American males have died at the hands of police, which is why we had this whole movement called Black Lives Matter erupt in the last decade or so?"

It's difficult to predict how the case will go, experts say. On-duty police officers can use lethal force so long as it's considered "reasonable" under the Supreme Court's 1989 Graham v. Connor decision.

"Even in the most egregious cases, it can be difficult to secure a conviction of a police officer," Chavis said.

In Hennepin County, a jury did recently convict a police officer — Mohamed Noor. His 2019 conviction and 12-year sentence is considered the first time a Minneapolis police officer has been convicted for an on-duty shooting.

But that case flipped the script on the expected racial dynamics. Noor is Black, and his victim was a white woman.

Should Chauvin, a white officer on trial for killing a Black man, win acquittal after Noor's conviction, it would "burst wide open this issue that we have with race, punishment and the criminal justice system, and who punishment is really meant for," Chavis said.

That's especially true because the facts of those two cases were so different, Chavis said. Noor reacted negligently in an instant when he was startled, but Chauvin acted more deliberately, she said.

"Maybe we don't want officer Noor to be a police officer, but does he exhibit the callousness and indifference to human life that officer Chauvin did?" Chavis asked. "Reasonable people could probably disagree, but I don't think so."

--Editing by Aaron Pelc.

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