Scott Johnson of POWERLINE Blog has been following the trial of Derek Chauvin for the murder of George Floy closely. For those interested in what is going on inside the courtroom I am providing daily updates on his reports below. This will continue through the end of the trial.
Personally, while I don’t condone the use of his knee on the neck of Mr. Floyd it is clear that Floyd had health problems that were exacerbated by taking illegal drugs, and that what most like led to his death. However, what counts is how the jurors vote at the conclusion of the trial.
This will be updated as Mr. Johnson drops new stories.
DEREK CHAUVIN TRIAL PREVIEW
Former Minneapolis police officer Derek Chauvin is charged with the murder of George Floyd last year on May 25. Floyd’s death set off ten days or ten months that shook the world. These notes are intended as a preview of the trial. Beginning with jury selection, the trial begins one week from today in Hennepin County District Court before Judge Peter Cahill. John Hinderaker offered a good overview in “A city prepares for a trial.”
• I signed up with the court to cover the trial for Power Line. My former colleague Greg Pulles has offered to pitch in by pinch-hitting for me on occasion as well.
• The arrangements for press coverage are unusual. They are set forth in this February 16 press release. Only two reporters at a time are to be allowed into the courtroom itself. They will serve as pool reporters.
• The rest of us have been assigned seats with access to the video live stream in the county’s Media Business Center across the street from the courthouse. I have also expressed interest in access to the live stream of the trial outside the media and business center, but it is not at all clear to me who else will have access to it. We await further announcements from the court.
• The court has set up a page for the Chauvin case here. All public filings in the case by the parties or the court are posted on that page. Separate pages have been set up for the three former officers also charged with responsibility for Floyd’s death. The separate pages for their cases are accessible on Chauvin’s page.
• The charges against Chauvin were brought in a lynch mob atmosphere led by Governor Tim Walz, Attorney General Keith Ellison, and Minneapolis Mayor Jacob Frey. They publicly pronounced Chauvin and the other officers guilty many times over last spring and summer.
• Those of us who took up law and/or journalism may have been inspired by Atticus Finch or John Adams or Woodward and Bernstein, but when the time came to face down the mob and talk back to the authorities, the lawyers and the press took their places in the crowd.
• Take the Star Tribune, for example. As the lynch mob formed and the city burned, the cat had their tongue. Star Tribune commentary editor D.J. Tice wrote an excellent column on “the challenge of a fair trial for Chauvin.” The column was published on February 20 — a little late in the game. And it stands more or less alone. (I raised the fair trial issue last year in posts including “Random thoughts on the Floyd case.”)
• At the behest of the mob, Governor Walz lifted responsibility for the prosecution from the office of the Hennepin County Attorney and assigned it to Minnesota Attorney General Keith Ellison. Ellison has named Assistant Attorney General Matthew Frank to lead the prosecution.
• Ellison’s office employs more than 130 attorneys. Despite the huge staff of attorneys at his disposal, Ellison has called in reinforcements to assist them.
• This past June Ellison announced the appointment of four outside attorneys in private practice or serving as corporate counsel as special assistants on the case (press release here). The special assistants include Steve Schleicher of Maslon LLP, Jerry Blackwell of Blackwell Burke, both of Minneapolis, and Lola Velázquez-Aguilu, lead counsel for brain modulation [!] at Medtronic in Fridley.
• The fourth outside attorney is the star of the group: former Obama administration acting Solicitor General Neal Katyal, now in private practice at Hogan Lovells in Washington, D.C.
• Curious about the arrangements for their appointment, I filed a Data Practices Act request with Ellison’s office seeking the relevant documents. Deputy Attorney General David Voigt produced a set of repetitive and partly redacted documents in response to my request under cover of a letter dated December 1, 2020.
• In his (partly redacted) June 12 memo naming the attorneys he wanted to be deputized, Ellison wrote that “[i]n terms of our trial team [redacted], I propose we include a team that brings us the best of all our strengths….I want to lick [sic] this down by Wednesday, June 17.” Naming the first three attorneys above, Ellison rendered Schleicher’s name as “Schlisher.” He touted Lola Velasquez-Aguilu’s experience as “former federal prosecutors [sic], good trial lawyer, a former federal prosecutor.” He had a lot on his mind.
• Heavily redacted notes of a June 17 office meeting reflect that Ellison wanted “a pool of trial lawyers with diverse skills” and that Ellison’s proposed pool of outside attorneys was “diverse.”
• Katyal came later and, of the four special assistants featured in Ellison’s press release, only Katyal has been visible so far. As of this month, Hogan Lovells associate attorneys Harrison Gray Kilgore and Victoria Joseph have been granted leave to appear on behalf of the state in the case as well.
• All the outside attorneys named in the case are serving Ellison’s office pro bono. Katyal’s going rate in intellectual property cases is something like $1750 an hour.
• Chauvin is represented by criminal defense attorney Eric Nelson. So far as I am aware, he has no outside help, pro bono or otherwise. If you’re looking for Atticus Finch in the case, Nelson will have to serve.
• Judge Cahill is a former Assistant Hennepin County Attorney and a former criminal defense attorney. I have been favorably impressed with his rulings so far.
• The state wanted all four officers tried together. Judge Cahill has separated the case against the three other officers for trial this summer. The state’s interlocutory appeal of Cahill’s order was dismissed.
• Cahill dismissed the third-degree “depraved mind” murder charge against Chauvin. When the Minnesota Court of Appeals recently affirmed former Minneapolis police officer Mahamed Noor’s conviction on this charge, it cracked the door open to the charge in this case. Cahill ruled against the state’s motion seeking to reinstate the third-degree charge.
• The state has appealed Cahill’s ruling to the Minnesota Court of Appeals, which has taken it upon an expedited basis. Attorneys for Noor, however, also intend to file a petition seeking review of the Court of Appeals ruling in that case with the Minnesota Supreme Court. It is not yet clear how the charge will be handled at trial.
• By assignment of Governor Walz, Ellison has sidelined and displaced the office of the Hennepin County Attorney in the case. Assistant Hennepin County Attorney Amy Sweasy may nevertheless be the most talented attorney in the state in the prosecution of police officers. She obtained Noor’s conviction in 2019.
• Ellison made his name around town as a Nation of Islam hustler supporting the defendants ultimately convicted for the murder of Minneapolis police officer Jerry Haaf in 1992. Among other things, Ellisonn spoke at a demonstration for one of the defendants during the trial in February 1993. Ellison led the crowd assembled at the courthouse in a chant that was ominous in the context of Haaf’s cold-blooded murder: “We don’t get no justice, you don’t get no peace.” Ellison’s career seems to be closing a circle in this case.
• The court and environs are to be protected by officers and troops numbering in the thousands. “Protesters” promise to do their thing. The prospect of a fair trial in this atmosphere seems incredibly remote. We remain one step removed from the territory of The Ox-Bow Incident.
CHAUVIN PRETRIAL NOTES
This past Monday I previewed the trial of Derek Chauvin that commences with motions in limine at 8:00 a.m. and jury selection at 9:00 a.m. (Central) tomorrow morning. If you missed my preview and think you might find it of interest, it is posted here (including a link to the CourtTV live stream). I want to add these pretrial notes.• I will appear as a correspondent on the trial for our friends at Justice & Drew on KTLK 1130 AM. They have me scheduled to kick off their coverage in the 7:55 a.m. segment Monday.• The case against Chauvin raises critical questions of fact including Chavin’s training and the cause of Floyd’s death. These disputed questions of fact are for resolution by the jury under the “beyond a reasonable doubt” standard of proof that applies in criminal cases.• By far the key issue, however, is whether Chauvin can get a fair trial in the lynch mob atmosphere that pervades the case. The visible manifestation of this atmosphere is the closing of the scene of the trial — the Hennepin County Government Center — for regular business and its encampment behind concrete barriers and barbed wire.• In view of the atmosphere the court has submitted a 14-page questionnaire for completion by prospective jurors. The questionnaire is posted online here. It will play a substantial role in the process of jury selection.
• On Friday the Minnesota Court of Appeals ruled that Judge Cahill had improperly failed to treat its decision in the Noor case as binding precedent. It all but ordered Judge Cahill to reinstate the third-degree murder charge against Chauvin. The Court of Appeals decision is posted online here.
• I posted the Noor decision here. The Minnesota Supreme Court has agreed to review the Court of Appeals decision in the Noor case, but Noor’s appeal won’t even be heard by the Supreme Court until June. The Minnesota Supreme Court decision in the Noor case will be the last word on the applicability of the third-degree murder charge in these cases.
• Judge Cahill must formally decide whether to reinstate the third-degree murder charge. If he does so, will he delay the trial? I think he is highly unlikely to do so. The critical questions of fact remain the same.
• The court’s daily trial schedule is set forth in the court order posted online here (“Order regarding discovery, expert witness deadlines, and trial continuance”). Judge Cahill has allowed at least three weeks for jury selection. Opening statements are scheduled no earlier than March 29. The arrangements for jury selection reflect the lynch mob atmosphere that pervades the case.
• Chauvin has filed a laundry list of motions in limine that are posted online here. The state’s memorandum of law responding to the motions is posted online here. The state’s memorandum anticipates the prosecution’s kitchen-sink approach to the case.
• George Parry is an attorney and former prosecutor who has written at some length on the case for the American Spectator and his own Knowledge is Good site. I asked George what he thought of the evidence the state will seek to introduce against Chauvin. George responded with the following comments that are posted here with George’s kind permission:
As described, the nurse’s proffered testimony regarding how she purportedly could have intervened and saved Floyd and how prompt medical intervention would have saved him is highly speculative, and, to my mind, inadmissible. Even if the judge allows it, a competent cross examiner would have no difficulty blunting the impact of her opinion testimony and, quite possibly, turning her testimony to the advantage of the defense by taking her on cross step by step through the findings at autopsy and Floyd’s toxicology report.
The psychiatrist’s proffered testimony regarding Floyd’s panic and anxiety would only serve to reinforce the basis for finding that he died from excited delirium. Moreover, although as a doctor she would likely be allowed to offer an opinion regarding the cause of death, I am unaware of any body of psychiatric research or expertise pertaining to excited delirium. This is a cause of death almost exclusively within the purview of emergency room physicians who deal with it on a regular basis and who have amassed a body of relevant research.
The “blood choke” testimony does not address what is shown by the video evidence. That kind of choke hold shuts down the flow of blood borne oxygen to the brain by applying direct, focused force to both carotid arteries. There are two carotid arteries, one on each side of the neck. By kneeling on the side of Floyd’s neck, Chauvin might have blocked one carotid, but the other was on the flat pavement.
My old friend Dr. Michael Baden, who was retained by Floyd’s family to examine the body, has opined that the knee on the neck blocked the flow of blood borne oxygen to the brain, but that will be a tough sell given that the carotid on the opposite side of Floyd’s neck was on a flat surface and no focused, direct pressure was applied to it. Consequently, the proffered testimony of a martial arts expert about a choke hold that would apply direct, focused pressure to both carotids – and that does not appear in the video – would seem to be irrelevant.
As for the police procedure witnesses, Chauvin’s deviation from procedure appears to have been his failure to place Floyd in the “recovery position” (on his side) once he was subdued. But to my knowledge no one has ever argued that Floyd’s death was the result of positional asphyxiation which is the hazard that the recovery position is calculated to minimize.
And I don’t see why police and fire witnesses should be allowed to testify regarding the possible impact of Floyd’s proven massive fentanyl overdose. This is a matter for a toxicologist or, possibly, a forensic pathologist.
If I were defending Chauvin, even if the court allowed the foregoing testimony, in cross examination I would jam it down the prosecution’s throat.
With the possible exception of the police procedure witnesses, the proffered testimony impresses me as a desperate scattershot effort to prove the cause of death. If the prosecution had clear-cut, well-founded evidence proving that Chauvin’s actions caused Floyd’s death, it wouldn’t be trying to present this kind of nonsense.
• George contributed to the 24-minute documentary produced by Centaur Filmworks analyzing the video of George Floyd’s arrest as well as the autopsy and toxicology results (video below). When first posted on YouTube by Centaur, it racked up more than 100,000 views before the YouTube truth squad “disappeared” the number of views, issued warnings about its content, and then required viewers to sign in with their passwords and state their age before they were allowed access.
CHAUVIN TRIAL DAY 1
I anticipated that Hennepin County District Judge Peter Cahill would take up the prosecution’s motion to reinstate the third-degree murder charge against Derek Chauvin first thing this morning at 8:00 and then commence jury selection at 9:00. Instead, the state moved to stay proceedings until the state’s effort to reinstate the third-degree murder charge results in a final judgment in the Court of Appeals or the Minnesota Supreme Court. The attorney for Chauvin announced that he would promptly seek review of the Court of Appeals decision requiring Judge Cahill to consider reinstatement of the third-degree murder charge under the Court of Appeals opinion in the Noor case in the Minnesota Supreme Court. This threw a wrench into the commencement of jury selection today. It appeared that Judge Cahill unsuccessfully sought guidance from the Court of Appeals with the input of the parties out of sight of the media this afternoon. Absent such guidance, Judge Cahill heard motions in limine over the course of an hour early this afternoon. The hearing concluded with his statement that “unless the Court of Appeals instructs me otherwise, we’re going to keep moving.” I believe it is the right thing to do. The prosecution is led by Assistant Minnesota Attorney General Matthew Frank. Chauvin is represented by defense attorney Eric Nelson. Meeting over the lunch hour, they agreed that 16 of the first 50 prospective jurors summoned to serve should be excused for cause based on their answers to the 14-page jury questionnaire I linked to yesterday in my pretrial notes. This suggests to me something of the difficulty of protecting Chauvin’s right to a fair trial in the lynch mob atmosphere that pervades the case.
Before his appointment to the bench by Governor Pawlenty, Judge Cahill worked both as a public defender in private practice as an attorney specializing in criminal defense. He also worked on the other side of the fence in the Office of the Hennepin County Attorney, where he rose to the level of Chief Deputy Hennepin County Attorney. Asking around town last week among those who know him, I was told he is “uniquely qualified” to handle the case.
Even so, the case raises fair trial challenges that I believe to be beyond the capacity of the judicial system. Perhaps a change of venue to Thief River Falls in northwestern Minnesota might mitigate the problem. Short of that, however, I don’t see it. The process of voir dire should in any event shed some light on this issue.
CHAUVIN TRIAL DAY 2
At the end of the first day of jury selection, three jurors had been seated. Looking for 16 — 12 and four alternates — the court might complete the process next week. Opening statements would not kick the trial proper off until March 29. Yesterday the parties stipulated to the dismissal of 16 of the first 50 prospective jurors for cause based on their answers to the 14-page questionnaire fashioned for the case. Today it took 9 prospective jurors to yield three. My imperfect notes reflect that three were excused as a result of peremptory strikes (one by the prosecution, two by the defense) and three for cause. Prospective juror number 1 was a woman originally from Mexico who spoke poor English with a heavy Spanish accent. I had a hard time understanding her. I thought her English was so bad I wondered if she could pass a citizenship test. Her husband helped her complete the juror questionnaire.
She rated her English a 7 or 8 on a scale of 1 to 10. At least she has no problems with self-image. She certainly wanted to serve on the jury. Why? “Because I would like to give my opinion of the unjust death of George Floyd.” That’s how she framed her answer on the questionnaire. I thought that was the quote of the day. However, she will not be serving on the jury as a result of a peremptory strike by the defense.
Two of the prosecution’s pro bono attorneys appeared in court today: Steve Schleicher of the Maslon LLC and Jerry Blackwell of Blackwell Burke. Assistant Attorney General Matthew Frank will lead the prosecution of Chauvin for the state at trial. He must have been back in the office tending to the appellate issues raised by the state’s effort to reinstate the third-degree murder charge. Eric Nelson is handling Chauvin’s defense by himself in what looks like a David versus Goliath match-up.
The questionnaire completed by prospective jurors proved instrumental. The form is posted online here. The attorneys have capably used the completed questionnaires to home in on the issues of pretrial publicity, personal security, and other possible secondary effects of their verdict.
I was most impressed with Judge Peter Cahill. Although I continue to harbor doubts about the ability of the judicial system to deal with this case, I have no doubt that Judge Cahill will control the courtroom and protect Chauvin’s right to a fair trial insofar as it is in his power to do so.
CHAUVIN TRIAL DAY 3
Jury selection continued for a second day, starting with prospective juror number 20. Although he understands that the case is “a big deal,” he professed no concerns for his physical safety if he were to sit as a juror. He finds the anonymity with which Judge Cahill is shrouding the jurors to be comforting. How long can such anonymity last in the age of social media? He manages a national sales team of 20 for the company that employs him. When both defense counsel Eric Nelson and deputized prosecutor Steve Schleicher passed him for cause, we had our fourth juror and I thought we were on a roll.Next up was prospective juror number 23. He works for a marketing company and has lived in the Twin Cities for 40 years. He too expressed no concerns for his personal safety. He wants justice to be served in the case and was willing to participate as a juror to produce “a fair outcome.” He saw the “protests” that followed George Floyd’s death on television last summer. However, he “didn’t see any usefulness to it.” He didn’t see anything useful in “burning Lake Street.” That was enough for Mr. Schleicher. The State exercised a peremptory strike to get him out of there. And so it went. Nelson struck prospective juror number 26. He also professed no concern for his safety if he were to serve, but he seemed oriented to the perspective of the prosecution in the case, as seems to reflect the norm in Hennepin County.
Prospective juror number 27 is a multilingual immigrant. He came to the United States — I think from somewhere in Francophone Africa — 14 years ago. He works in IT. He loves technology. He expressed no concern for his physical safety. He said he wants to serve as a juror to make the justice system work. In response to questions posed by Schleicher, he stated he disagrees with proposals to defund the police. Passed for cause by both sides, he is our fifth juror in the case.
Prospective juror number 28 is in real estate sales. He expressed no concern for his physical safety. He stated in his juror questionnaire and in his response to Nelson’s questions that he has a very negative opinion of defendant Derek Chauvin. He is an advocate of police reform. His daughter participated in marches last summer. If he served on the jury and rendered a not guilty verdict he would disappoint her. I thought he would be a difficult juror for Chauvin and Nelson used his fourth peremptory challenge to strike him.
Prospective juror number 29 was a practicing lawyer early in her career. She wanted to serve on the jury. She projected an air of neutrality about the facts of the case. She said she needs to know more about “police protocols.” Schleicher struck her.
Juror number 30 loves music and works in a leadership position on the lay staff of a mid-size local church. His view of Chauvin is “very negative.” He thinks Chauvin murdered George Floyd. He reflects the full boat “social justice” mentality that afflicts Minneapolis. He was an obvious nightmare for the defense. Nelson tried manfully to get him stricken for cause but had to use another peremptory challenge to strike him.
At the end of the day, we had two more jurors and word that the Minnesota Supreme Court had denied review of the Court of Appeals decision ordering Judge Cahill to consider reinstatement of the third-degree murder charge under the Noor case. When the lawyers appear before him this morning at 8:00, they will take up the question of how to proceed on the third-degree charge with Judge Cahill. My understanding (partial guess) is that the third-degree charge is coming back into the case when the Court of Appeals decision becomes final and the trial court reacquires jurisdiction over the issue. Whether the third-degree charge remains viable will not be determined until the Minnesota Supreme Court decides the Noor case itself later this year.
Last night Tucker Carlson opened his show with an overview of the death of George Floyd and the resulting maelstrom (video below). He took up the questions of fact that are basic to the case. He closed the segment with my own reflections on the mob factor that troubles my thoughts about the case.
CHAUVIN TRIAL DAY 4
Late Wednesday the Minnesota Court of Appeals issued its final judgment on the interlocutory appeal of Judge Cahill’s order denying reinstatement of the third-degree murder charge against Derek Chauvin. Under the Court of Appeals decision, Judge Cahill was to apply the Court of Appeals decision in the Noor case as a binding precedent. He heard arguments on the reinstatement issue from both sides first thing Thursday morning and granted the prosecution’s motion to reinstate the charge. Please note, however, that the viability of the charge as a matter of law remains subject to a future ruling by the Minnesota Supreme Court in the Noor case later this year. Minnesota Attorney General Keith Ellison omits any note of this wrinkle in his press release on the reinstatement of the charge. Defense counsel Eric Nelson has an all-Star team of attorneys arrayed against him in this case. Former Obama administration acting Solicitor General Neal Katyal argued the reinstatement issue via Zoom on behalf of the prosecution. Katyal is contributing his services to the prosecution, as is Maslon partner Steve Schleicher and Blackwell Burke partner Jerry Blackwell. Assistant Attorney General Matthew Frank will apparently lead the trial team in court with their assistance and that of another attorney or two from the Attorney General’s office.
The set-up reminds me of The Verdict, where a team of corporate lawyers works to crush Frank Galvin (Paul Newman) and his client. I always thought that aspect of the film was unrealistic, but here is something like a real-life version with the polarity of popular sympathies reversed.
As jury selection made clear again yesterday, Derek Chauvin is generally a hated figure among the pool of potential jurors. Everyone has seen the video. Everyone hates his face. That is one problem Paul Newman didn’t have to contend with in The Verdict.
This raises another point. As each panel of prospective jurors is brought in, Judge Cahill has the attorneys introduce themselves. Christina Marinkakis has been introduced several times as part of the prosecution team. I thought she was an attorney or legal assistant like the others, but no. She is a jury consultant. I seriously doubt that she is contributing her services to the state, which is sparing no expense to convict Chauvin and his former colleagues.
The attorneys examined six prospective jurors yesterday, yielding one — juror number 36 — whom I had down in my notes as a difficult juror for the defense. According to the responses on his juror questionnaire, his opinion of Chauvin is “very negative.” Having viewed the video, he thought Chauvin was just flaunting his authority in holding George Floyd down. However, he wasn’t enthusiastic about the riots that followed Floyd’s death. He believes the police are “here to help us.” He wants to see the big picture in the case. He professed to understand that he doesn’t yet have it. This is about as good as it’s going to get for Chauvin before the prosecution exercises a peremptory strike (as Schleicher did on juror number 38).
Judge Cahill adjourned before the scheduled time of 4:30 when juror number 41 cut to the chase at the end of the day. Taking her seat for voir dire, she stated that she wanted to amend one of her answers on the questionnaire. In light of the video, she had concluded that she could not be an impartial juror. Floyd’s death, she said, has impacted her life. She reiterated that she could not serve as a fair and impartial in the case. Schleicher tried without success to rehabilitate her. Judge Cahill excused her for cause and announced we would resume this morning at 9:00 a.m. (Central).
Attorney Andrew Branca is covering the case for Legal Insurrection. His colorful take on yesterday’s proceedings is here. In short, Judge Cahill struck jurors 31, 37, and 43 for cause. Nelson used peremptory challenges to strike jurors 39 and 40 (a music teacher whom I had noted as “a nightmare for the defense”).
Judge Cahill noted that juror 43 responded to every question on the questionnaire with the answer “No English.” He also failed to return the form stating his qualifications — citizenship and residence — to serve as a juror. I think juror 43 is, as they say, undocumented, but Minneapolis is a sanctuary city. Juror 43 will remain free to pursue other interests during the Chauvin trial.
When Schleicher made a Batson challenge to Nelson’s peremptory strike of juror 39 — I had him down in my notes as “tough for the defense” — Judge Cahill ruled that Schleicher had not even made out a prima facie case supporting the challenge. He added that three of the six jurors seated so far identify as white, one as multiracial, one as Hispanic and one as black.
CHAUVIN TRIAL DAY 5
The big news on Chauvin trial day 5 took place over at the Minneapolis City Council, as our friends at Justice & Drew call it. The city settled the wrongful death case brought by George Floyd’s next of kin for the world-beating sum of $27 million. The Star Tribune reports: “Attorneys for the Floyd family hailed it as the largest pretrial settlement in a civil rights wrongful death lawsuit in U.S. history, saying the payout sent a powerful statement about the value of Black lives in America.” The screenshot below depicts the Star Tribune above the fold on page 1 this morning, while we are about midway in the process of jury selection.
If I were counsel for Chauvin I think I would want to revisit the issue of venue with Judge Cahill just about every day. The five prospective jurors interviewed yesterday yielded one woman — juror number 42 — who will sit on the jury. She is the seventh selected as we head toward 14 or 16 (including two or four alternates).
Juror number 44 is an executive with a health care nonprofit. Her opinion of Chauvin based on the videos she has seen is “somewhat negative.” She expressed sympathy for George Floyd (“he didn’t deserve to die”) and the officers. “Everyone’s life was changed by this incident,” she said.
She believes that our laws haven’t kept up with social changes. Reform is needed. She believes that the judicial system is racially biased, that excessive force against blacks must stop, that the system is “inherently biased,” that “white privilege” is a reality.
However, she is an analytical person who asserts she can and will be fair and impartial. She understands she is required to render “a verdict based on the facts.” She is not good for the defense but Nelson passed her for cause because he has a limited number of peremptory strikes and an unfavorable jury pool with which to contend.
Judge Cahill announced that the parties had agreed to the release of prospective jurors 58, 80, 81, 84, 93, 94, and 100 for cause. Twenty-three of the first 100 prospective jurors have accordingly been released for cause by agreement of the parties. It is representative of the venue problem that permeates the case.
Understanding the interest in the jury, Judge Cahill authorized the release of the following information on the seven jurors seated so far.
· No. 2: white male; 20s
· No. 9: multi/mixed-race woman; 20s
· No. 19: white male; 30s
· No. 20: white male; 30s
· No. 27: black male; 30s
· No. 36: Hispanic male; 20s
· No. 44: white woman; 50s
Our friends at Justice & Drew at KTLK 1130 AM/103.5 FM have deputized me as their correspondent on the case. I appeared for a segment each morning this week at 8:00 a.m. Producer Samantha Sansevere kindly clipped the audio of these segments and posted them here. Yesterday morning Howard Root joined us. Given Howard’s personal experience as a criminal defendant, I thought it was a particularly lively segment. I have embedded it below.
CHAUVIN TRIAL DAY 6
At the end of the motion hearing yesterday morning, defense counsel Eric Nelson expressed his grave concern over the effect of the city’s world-beating $27 million wrongful death settlement in the civil litigation resulting from the death of George Floyd. Nelson cited prejudicial comments made by Mayor Frey and the members of the city council in support of the settlement. With seven jurors selected and released until the beginning of the trial proper on March 29, he complained of the settlement’s “suspicious timing” and “unavoidable headlines.”Nelson accordingly moved for a continuance of proceedings scheduled for March 29, renewed his change of venue motion, and asked for further voir dire of the seven jurors on their possible exposure to news of the settlement. He also asked for extra peremptory strikes and immediate sequestration. “This should be the subject of a hearing,” Nelson argued, to be added to a hearing on the leak to the New York Times regarding settlement negotiations in Chauvin’s criminal case. The last point follows from Tim Arango’s February 10 New York Times story. Defendants have filed a dismissal motion predicated on the possible violation of the court’s gag order that the story represents. I am not aware that any hearing has been scheduled on that motion. In response, Steven Schleicher — one of the several attorneys contributing his services to the Chauvin prosecution — argued that the state had no control over the comments made by city officials. He argued further that the settlement was not coordinated by the state and that jurors have expressed their ability to set publicity aside. Judge Cahill drily responded: “You would agree that it’s unfortunate.” The defense has “a legitimate concern,” he observed. The only motion he granted, however, was further voir dire of the seven jurors selected so far. As for the rest, he added, “Let’s wait to see if we have a problem.” As I’ve been saying right along, we have a problem, but I’m not sure the judicial system can mitigate it. Judge Cahill concluded his comments by taking the motion for a continuance under advisement. I think the same applies to the defense’s renewed motion for change of venue.
Juror number 51 illustrated one set of prejudice problems. She had inadvertently heard about the settlement over the weekend. She works in human resources and had a sophisticated understanding of the interplay between civil and criminal litigation. She drove by the Third Precinct on her way to court that morning, she said, as well as past the no-go zone honoring George Floyd at 38th and Chicago. She has been exposed to so much, she said, she is leaning way over to one side. The settlement impacted her as well. She could perhaps be impartial in the case of the other three officers charged with Floyd’s death, but not in this one. So long, juror number 51.
Juror number 52 professed to be “a friendly, positive person.” He works in banking and coaches youth sports. He sounded to me like an extremely decent and reasonable man, but he has views that would have made me want to strike him. He believes that racial discrimination exists “well beyond what the media can report.” He thought that the other three officers should have intervened to stop Chauvin, as has just about every prospective juror, but he professed his ability to be impartial and follow the law as given. He wants to serve as a juror. He would love to be a part of “this historic case,” he said. A black male in his 30’s, he was the eighth juror seated in the case.
Juror number 54 expressed doubt that he could be impartial. A senior citizen who could have been excused as a matter of course by his age, he was excused for cause.
Juror number 55 struck me as dangerous for the defense. She is a white woman in her 50’s who is an executive assistant at a health clinic. On the jury questionnaire, she said she has a “somewhat negative” view of both Derek Chauvin and Black Lives Matter. She expressed concerns for her personal safety depending on “the end result.” The question, she said, is how others will perceive the verdict. I read her as a possible leader on the jury. Juror number 55 is the ninth juror seated in the case.
I thought we were on a roll, but no. Jurors number 59 and 62 were excused for cause. Fifty-nine is a school teacher. By my lights, he would probably have been out on that ground alone. He doubted he could grant Chauvin the presumption of innocence. “I’m almost sick to my stomach right now,” he said.
Juror number 62 channeled the concerns I have expressed here and elsewhere about the case. He noted that it would be difficult to confine the decision to the courtroom. He wonders if the safety of his family would be at risk if the outcome of the case were to go “a certain way.” That’s one way to put it. I’ll have to remember that one.
Juror number 60 doesn’t like controversy. He is an undergraduate who would like to go to law school. He doesn’t want to make anybody angry. He seemed to me to understand the intellectual environment he’s swimming in with great acuity. He perceives the college campus as liberal ground. He had no opinion of Chauvin’s conduct. He is also scared he might make the wrong decision in the case. I read him as a classic follower. He would have gone with the flow in deliberations. I thought Nelson wasted a peremptory strike to remove him from the jury panel.
CHAUVIN TRIAL DAY 7
In the time reserved for motion hearings yesterday morning, Judge Cahill heard defense counsel Eric Nelson’s offer of proof on George Floyd’s May 2019 encounter with the Minneapolis police. Floyd was high at the time and in medical distress. Previously ruled inadmissible, Judge Cahill indicated he would revisit the issue and took it under advisement. He indicated he would announce his ruling on Thursday, as I understood his comments. My assessment is that the evidence may be admissible in part insofar as it bears on the cause of death, but it is otherwise not coming in. Although precisely no jurors were seated, the day proved interesting and eventful in its own way. Judge Cahill announced that he would himself conduct voir dire of the seven jurors selected last week to ascertain their awareness of the $27 million wrongful death settlement in the related civil litigation. As I understood the arrangements, he will briefly examine each available juror via Zoom tomorrow. He has also taken defense motions for a continuance and change of venue under advisement. He should have something to say about these motions soon, if not today.
Nelson also raised the issue of pretrial publicity in the context of the wrongful death settlement. He cited the March 12 Washington Post story in which an unnamed city official expressed his awareness of the possible impact of the settlement on the criminal case and spoke with Chief Hennepin County District Judge Toddrick Barnette. Nelson referred to this passage in the Post story:
A Minneapolis official said the city had been concerned that the announcement could affect the trial.
The official, who was not authorized to speak publicly, said the city consulted with Hennepin County Chief District Judge Toddrick S. Barnette, who told the city it could proceed. Barnette did not immediately respond to a request for comment.
Having taken up the issue with Judge Barnette, Judge Cahill disputed the accuracy of “the official’s” account of his conversation. Judge Barnette was said to have advised the city that he had no control over its handling of the federal wrongful death case. Judge Cahill quoted him as saying words to the effect that “We can’t tell you what to do,” not as authorizing the announcement of the settlement.
Expressing his annoyance, Judge Cahill observed, “I think the city is trying to dump their responsibility back on the court, where it does not belong.” My notes reflect that Judge Cahill said he would deal with this today, but I’m not sure what that means.
Minnesota Attorney General Keith Ellison was, as usual, in the courtroom yesterday. His office is handling the prosecution of Chauvin with the assistance of an all-star team of outside attorneys who are contributing their services. The Star Tribune reports that Ellison was guarded on the settlement. He “declined to comment when asked by a reporter whether he or the court knew that a settlement had been reached before it was announced Friday. His son Jeremiah Ellison is a Minneapolis City Council member and voted for the settlement.”
Judge Cahill also expressed particular concern about Tim Arango’s February 10 New York Times story on the negotiations of a guilty plea in this case based on unnamed law enforcement sources.
Jurors 63, 64, and 66 were excused for cause. Juror 67 was up next. I have early in my notes on Nelson’s examination of him that he was “dangerous for the defense.” He is the director of a youth organization — a youth ministry, I think — who wanted to serve as a juror. He “would like to participate in justice,” as he put it in the responses to the juror questionnaire. He had formed the opinion that “Floyd’s death is wrong and we should speak up,” or words that effect. However, he professed concerns both for Floyd and for Chauvin. He had prayed for everyone involved in the case. He would follow the law as given by Judge Cahill. Nelson exercised a peremptory challenge to strike him (his tenth of 15).
Juror 69 was the last examined before lunch. He was aware of the $27 million wrongful death settlement and understood it had no bearing on the criminal case. He said he was not excited about sitting as a juror in this case of “global scale” and would have concerns about his safety “whichever way it would go.” I don’t really think he would have worried about his safety in the event of Floyd’s conviction, but that is how it goes with some prospective jurors. Speaking circumspectly, he subsequently conceded he would have “more concerns” if the case resulted in a not guilty verdict.
He observed that the media coverage of the case had evolved in the days following March 25 from “the death of George Floyd” to “the murder of George Floyd.” I have down in my notes that he adopted this media stance. His juror questionnaire indicates that he has formed a “very negative” opinion of Derek Chauvin. The presumption of innocence would accordingly be difficult to afford in this case, but he stated that he could set aside his preconceptions to do the right thing. He understood that “the right thing” might be finding Chauvin not guilty. He stated that he could serve as an impartial juror in the case. I have in my notes at this point that he was “obviously tough for the defense.” He had formed the opinion that what happened to Floyd was an injustice. Nelson exercised a peremptory challenge — his eleventh of 15 — to strike him.
Having thought about it over lunch, Nelson had second thoughts. He moved to have his peremptory restored and juror 69 stricken for cause. He asked Judge Cahill to presume the prejudice of prospective jurors from the pretrial publicity. He referred to the prejudicial statements made about Chavin’s guilt by “elected officials” roughly from the day of Floyd’s death. He asked for “more latitude” ta examine prospective jurors about the settlement.
In response, Steve Schleicher — the Maslon lawyer who is contributing his services to the prosecution — pooh-poohed Nelson’s concerns about the settlement. He described them as overblown. With respect to juror 69’s professed ability to disregard the settlement, Schleicher argued that Nelson was “asking for a presumption of lying.” What we have here is “elected officials” doing their job. Schleicher deserves some kind of award for his ability to keep a straight face.
Schleicher added that the court had 329 prospective jurors at its disposal and had set aside three weeks for jury selection. There is world enough and time to get the job done. He urged Judge Cahill “not to overreact to what’s been happening.” Juror 69 had “demonstrated no reason to strike him for cause.”
Judge Cahill denied Nelson’s attempted reclamation of his peremptory, but his remarks revealed the misguided constraints Nelson seems to have imposed on himself in voir dire. Judge Cahill stated that he would exercise discretion in making the judgment whether a prospective juror could in fact be fair and impartial. He can’t presume prejudice, he said, and he did not see juror 69 to be lying, but some jurors “lack the introspection” to acknowledge they can’t be fair. He will make the judgment based on his reading of juror under the circumstances. My translation is that Nelson should at the least have moved to strike juror 69 (and others) for cause.
Jurors 71 and 73 consumed the rest of the afternoon. They were both stricken for cause, 71 on Nelson’s motion and 73 on Schleicher’s.
CHAUVIN TRIAL DAY 8
Under the court-ordered arrangements for coverage of the trial, two seats are reserved for pool reporters inside the courtroom. The courtroom itself has been reconfigured to accommodate Covid-related public health recommendations. Participating media outlets rotate two reporters per day into the courtroom. These reporters provide on the spot coverage to members of the pool.
Judge Cahill opened yesterday’s proceedings with a condemnation of “media” — one of Tuesday’s pool reporters — who had tweeted out material he observed at counsel table and “security arrangements” inside the courthouse (video below via Alpha News). Judge Cahill castigated these disclosures as “absolutely inappropriate” and “completely irresponsible.” He threatened to impose sanctions including expulsion of the media and closure of the media center across the street from the courthouse (where I am working along with the pool reporters).
On a personal note, I would add that I know and like the pool reporter who was the unnamed subject of Judge Cahill’s remarks. I didn’t see his offending tweets or related reports. Although I assume that Judge Cahill’s anger is warranted, I believe the reporter’s disclosures must have been innocent in the sense that they were intended to provide color and violated no previously stated prohibitions.
Via Zoom, Judge Cahill then examined the seven jurors selected last week before the announcement of Minneapolis officials that they had settled the Floyd family wrongful death civil litigation for the world-beating sum of $27 million. He asked each of the seven if they were aware of any recent developments related to the case with a single tactfully worded question and followed up as appropriate.
Two of the seven jurors — number 27 and number 44 — had come across coverage and professed to be unaffected by it. Two other jurors — number 36 (a Hispanic man in his 20’s) and number 20 (a white man in his 30’s) — acknowledged that they were aware of the settlement and had been seriously affected by it. Both of them — number 36 and number 20 — were excused from jury service.
Juror 36 formulated the common sense of the settlement: “That dollar amount was shocking to me. That kind of sent the message that the city of Minneapolis felt that something was wrong and they wanted to make it right to the tune of that dollar amount.”
At the outset of the day, we were down two of the previously selected nine jurors. However, by the end of the day, two jurors had been added to the seven. We, therefore, ended the day where we had started it, with nine jurors selected and five more to go.
Jury selection resumed with juror number 75 (excused for cause) and number 76 (stricken by defense peremptory challenge). Number 76 was a very respectful black man with a record of military service. He said he had seen a lot of black people get killed with no accountability for it. He can’t explain the lack of accountability. He was familiar with the death of George Floyd from CNN’s coverage. “I”m a CNN guy,” he said.
I thought to myself, “Say no more, sir.” But he did. He saw the case as “another black man being murdered at police hands.” He held a “very negative” opinion of Derek Chauvin but said he would evaluate the evidence introduced at trial. Referring to his views, he said, “My opinion doesn’t really matter…I can do what’s right.”
He harbors a jaundiced if a widely held view of the justice system. If you’re black, he said, you make “a plea deal” and go to prison. If you’re white, “you get a slap on the wrist.”
Defense counsel Eric Nelson challenged the juror for cause. Judge Cahill found the juror to be introspective about separating his views from the case at hand. Nelson accordingly exercised a peremptory strike. Judge Cahill commented that the juror’s hostility to the Minneapolis Police Department provided a substantial basis for the peremptory strike.
Juror 78 was up next. He thinks he could be an impartial juror — he is by his own lights “a very centered person.” I thought that was a negative indicator, as it in fact proved to be.
He had seen news of the wrongful death settlement. It didn’t surprise him. I have in my notes at this point, “This guy is poison for the defense.” on the central issue in the case, he expressed the view that Chauvin caused Floyd’s death, the central issue in the case. He thought there were many ways this outcome could have been avoided. He “would like to think” he could accord Chauvin the presumption of innocence, but wasn’t sure about it. It would be difficult for him “to start at ground zero,” he acknowledged. Judge Cahill granted Nelson’s challenge to the juror for cause.
I thought that these two prospective jurors were illustrative of the fair trial problems that permeate the case. Up next was juror number 79, a black immigrant with a thick African accent. He has lived in the Twin Cities for the past 20 years or so. Although I had a hard time making out a little of what he said, he is extremely thoughtful and articulate. He works in a management capacity and lives in a Minneapolis suburb where he feels protected by the police. He “strongly disagrees” with defunding the police. I would like to get to know this gentleman.
He doesn’t come to Minneapolis a lot, which I am sure is a benefit to what I perceive to be his positive frame of mind. Departing from the norm of the prospective jurors so far, he professed a neutral opinion of Chauvin (along with a “somewhat positive” impression of George Floyd). He is confident he can be an impartial juror. He would like to hear from Derke Chauvin during the case but understands that Chauvin has no obligation to testify. As to Black Lives Matter and Blue Lives Matter, he is of the view that “Every life matters. We all have a family to get back to at the end of the day.”
As I say, I would like to get to know this gentleman. He will be seated as juror number 8.
Based on her answers to the questionnaire, Judge Cahill knew that juror number 83 had sensitivities about service in this case. He examined her off the audio and quickly excused her for cause. He noted that “she left the courtroom in tears.”
Juror number 85 is a working mom and wife. She works as a management consultant. She said she spends a lot of time at hockey rinks. She must be a hockey mom. She found the courthouse security “a little surprising” and “a little unnerving.” She appreciates the anonymity afforded the jurors through trial.
She is familiar with the settlement of civil litigation. However, she asserted she could disregard it in this case. “The settlement doesn’t declare guilt,” she said. I commented in my notes that she is analytical and intelligent.
She has seen the bystander video six or more times. Her impression of Chauvin is “somewhat negative.” He appeared to take little action despite the pleas of bystanders, she explained but can set her opinions aside and accord Chauvin the presumption of innocence.
She has been taught to respect and cooperate with the police. She tends to agree with the proposition that if something bad happens to someone who didn’t cooperate with the police, he has himself to blame. She has no opinion on whether Chauvin caused Floyd’s death.
My assessment was that juror number 85 is as good a juror for the defense as Chauvin can get without being struck by the prosecution and that is how it played out. Juror number 85 is the ninth juror seated in the case.
At the end of the day, we were back where we had started. For those keeping score at home, the self-identified race, gender, and decade of age information for the selected jurors in the trial so far is as follows:
· No. 2: white male; 20s
· No. 9: multi/mixed-race woman; 20s
· No. 19: white male; 30s
· No. 27: black male; 30s
· No. 44: white woman; 50s
· No. 52: black male; 30s
· No. 55: white woman; 50s
· No. 79: black male; 40s
· No. 85: white woman [amended by the court Thursday morning to “multi/mixed-race woman”]; 40s
Judge Cahill concluded the day with the announcement of his decision to grant three additional peremptory challenges to the defense and one more to the prosecution — on account of the issues related to pretrial publicity with which he has been contending. He will announce his rulings on pending motions for a continuance, for a change of venue, and for admission of evidence concerning Floyd’s May 2019 arrest. I infer that the grant of additional peremptory challenges reflects Judge Cahill’s probable denial of the motions for a continuance and change of venue. Based on comments he made in court earlier this week, my guess is that any evidence deriving form Floyd’s 2019 arrest will be severely circumscribed.
CHAUVIN TRIAL DAY 9
If the day didn’t exactly begin with a whimper, it ended with a cathartic bang of a sort. Stick with me here. In between the whimper and the bang three more jurors were seated, bringing the total to 12 so far. We should have 14 soon and adjourn until opening statements on March 29.
Before jury selection resumed Jerry Blackwell — one of the several outside attorneys contributing his services to the prosecution — argued in favor of the exclusion of evidence of George Floyd’s May 2019 arrest by the Minneapolis police. The issue is one of legal relevance. Late yesterday afternoon the state filed this memorandum of law on the issue. (It also filed this memorandum of law opposing continuance of the case on account of pretrial publicity.)
Judge Peter Cahill will announce his rulings orally on these motions and on the change of venue motion at 8:15 this morning. Jury selection should resume at 9:00. I anticipate that he will deny the motions for a continuance and change of venue. He has already ruled against the admission of evidence of the May 2019 arrest. If he changes his mind on that, my reading is that he will admit the evidence only for limited purposes.
Blackwell’s argument Thursday morning was focused on the expert medical testimony of one Dr. Vincent. A video clip of Blackwell’s argument is posted here.
The prosecution seeks to introduce Vincent’s expert testimony on how “a human being” in Floyd’s circumstances at the time of his arrest in May 2020 would react. They want to show that Floyd was reacting normally. I think this is a weak argument. I have in my notes that “this argument is a crock.” If granted — as Judge Cahill commented — it opens the door to Floyd’s behavior in the May 2019 arrest. We shall see.
After a short break jury selection resumed with juror number 86. We don’t get racial or ethnic data on jurors who are not selected, but I detected a pretty thick Chinese (I think) accent. Although she has avoided the news, she had learned of the settlement of the civil litigation. She conceded that, based on what she knew, she leaned toward the prosecution. Judge Cahill excused her for cause before turning her over to the lawyers for voir dire.
The prospective jurors, I should add, have been asked by the court to avoid the news since they were summoned to jury duty this past December or so. Everyone understands, however, that news of the case is to some extent unavoidable. It is one of the basic fair trial challenges that permeates the case.
Juror number 87 was not equally current on the news. She is a soft-spoken mother of five who had not seen the video of the arrest and professed neutrality toward the parties. Although defense counsel Eric Nelson took his time with her, I guessed that her evident fairness toward the parties would elicit a peremptory strike by Steve Schleicher — another of the outside attorneys contributing his services to the prosecution. I have in my notes on Schleicher’s voir dire that she would be an ideal juror — an ideal juror, period.
Schleicher asked about her son’s attendance at one of the protests following Floyd’s death. It turns out that her son was at the protest on Highway 35W in Minneapolis that narrowly avoided catastrophe when the truck driver slammed on the brakes. George Floyd’s death has touched a lot of people in the Twin Cities one way or another. She didn’t know about her son’s attendance at the protest until afterward and only expressed concern for his safety. As anticipated, Schleicher exercised a peremptory challenge to strike her. (The state has four strikes remaining.)
Given the prospective concerns about their safety, Judge Cahill indicated that he intended to authorize the identification of the jurors only when he deemed it safe to do so. Nelson, who regularly inquires on the issue of juror concerns about personal safety, now incorporates this assurance into his voir dire. It wouldn’t do much for me, but there you have another aspect of the fundamental fair trial challenge in this case.
We need not linger long over juror number 88, He heard about the settlement of the civil litigation. His initial reaction was shock. Judge Cahill examined the juror with the audio off and excused him for cause as a result of his acquaintance with a key witness in the case.
Juror number 89 had also been exposed to the settlement. In her case, even though she is trying to avoid the news, she heard of it through a passing mention on the radio. She knew the amount was $27 million. She stated that the settlement didn’t affect her view of the criminal case.
She is an experienced nurse who lives alone in the first-ring Minneapolis suburb Edina. She expressed ambivalence about being summoned to jury service in this “big case.” It portends “a lot of repercussions.” She is concerned about her safety following the trial but reassured by the security in the courthouse and the anonymity afforded the jurors. It “kind of” makes her feel better. She is no dummy; she is unsure how comfortable she is with the prospect of her name being out there somewhere down the road.
Her juror questionnaire provides a narrative of the facts of the May 25 arrest up to Floyd’s death that is probably based on television news. She holds neutral opinions of both Floyd and Chauvin. She seemed to think that Chauvin kept his knee on Floyd’s neck too long “knowing he died.” She is unsure of the cause of death. She does not distrust the police. Passed for cause by the parties, she is the tenth juror seated in the case. We were then advised by the court that she is a white woman in her 50’s.
Juror number 90 is a classic Hennepin County juror. He is an IT administrator of firm leftist views with an extremely negative opinion of Chauvin. He is sane enough to fear for his personal safety if he were to sit as a juror and render a verdict of not guilty, but he doesn’t need to worry. His views of the police are so hostile that he was excused for cause. This guy could be the grating voice of the Minnesota DFL. His assessment of the safety issues inherent in the case is skewed by lunacy. He is a lunatic living in a left-wing fantasy world.
The controlling Minnesota case — the Logan case — provides that jurors with a clear showing of partiality for police testimony are to be excused for cause. Judge Cahill concisely excused juror number 90 for cause as “a reverse Logan.”
Juror number 91 is also aware of the $27 million wrongful death settlement. An older lady who worked in marketing for a financial company, 25-30 years ago she lived in the neighborhood where the incident occurred. She doesn’t return to the neighborhood or even come much to Minneapolis. She said she hasn’t been downtown in years. I chalk up her good attitude to avoidance of the city.
She enjoys “taking care of her family.” She has “a couple of grandchildren.” Her son-in-law is a physician.
She is excited to have the opportunity to serve as a juror in the case. She was proud to fill out the questionnaire. She seldom watches the news and has only seen the video once, for four or five minutes, before she shut it off. She expressed neutral views of George Floyd and Derek Chauvin. She knows there are two sides to every story. “I only know the surface,” she said, and thought more information would be helpful before she makes up her mind.
She grew up in south Minneapolis, where the incident occurred. She lamented the many stores that were looted and destroyed. She has a relative who is a police officer. She isn’t close with him, but she is proud of him for standing up as a police officer. Asked on the questionnaire about her view of Black Lives Matter, her response was: “I am black and my life matters.” She expressed no view of the organization.
I view juror number 91 as a good citizen. Her degree is in child psychology. She occasionally volunteers with a youth organization to help kids with their homework. I have her down as about as good as it gets for the defense. She is the eleventh juror seated. According to the court, she is a black woman in her 60’s.
At this point the court took an afternoon break. When court convened again following the break, Eric Nelson noted that city officials were publicly holding forth about the settlement of the civil litigation again (video below). He cited Mayor Frey’s comments yesterday in further support of his change of venue motion. I didn’t know at the time — and I doubt Nelson did either — that the comments of both Frey and City Attorney Jim Rowader at the press conference, about the settlement’s lack of impact on the Chauvin case — were bald falsehoods, as one reporter had the temerity to point out.
Mayor Jacob Frey and City Attorney Jim Rowader attempt to explain why Minneapolis agreed to a $27 million civil settlement with George Floyd’s family in the middle of jury selection for Derek Chauvin’s trial: pic.twitter.com/8oQnu9fPhh
— Alpha News (@AlphaNewsMN) March 18, 2021
Although she stated it had no effect on her view of the case, juror number 92 was also aware of the $27 million settlement. She is family-oriented and loves her work in the business of commercial insurance. She has some concern about “what would happen to [her] afterward” if she were to serve as a juror. She would be okay with the release of her name at a later date.
She has seen a clip of the video. She holds “somewhat negative” views of both Floyd and Chauvin. The media have painted Chauvin as “an aggressive cop with tax problems.” She is aware that “George Floyd’s record wasn’t clean” and that “he abused drugs at some point.” Her opinion is that the police used excessive force but that Floyd was not completely innocent.
By contrast with juror number 91, juror number 92 is not a classic Hennepin County juror. She “strongly disagrees” with defunding the police. She sees both positive and negative effects to have followed on Floyd’s death. “We need law enforcement,” she said. Why? “Look at the riots.” She was the twelfth juror seated.
Juror 95 gets his news from NPR. That was enough for me, but Nelson continued with him. He knows of the settlement. He was shocked by it — he didn’t expect the civil case to be settled until the criminal cases are concluded. Although he thinks he can still be impartial, the settlement altered his view of the case. It is hard to get out of his mind. At about this point I figured out that he spoke with an Indian accent.
Probing his concerns over his own and his family’s safety whatever the verdict, Nelson ascertained that he could not focus on the evidence in the case. Those safety concerns would weigh on his mind. Judge Cahill excused him for cause.
Schleicher then rose to offer a transcript of Frey’s press conference and to chide Nelson for citing the press conference without a formal affidavit for the record. This set Judge Cahill off. Setting Schleicher back on his heels, Judge Cahill noted the disparity between the prosecution team and the defense. How many attorneys have been admitted for the prosecution pro hac vice so far, he asked. Ten or 12? Schleicher professed not to know but added the irrelevant point that Nelson’s fees were paid by the police union. That is a surprising lack of professionalism on Schleicher’s part.
Judge Cahill had some harsh words for the prosecution at the end of today’s proceedings in the Derek Chauvin trial: pic.twitter.com/KDsHGWx9RA
— Alpha News (@AlphaNewsMN) March 18, 2021
I invoked Paul Newman’s adversaries in The Verdict to make a point about the disparity between the prosecution and defense teams in part 4 of this series. It was good to see Judge Cahill unload it on Schleicher.
The next two jurors selected will serve as alternates. Here is the court’s summary of the 12 jurors seated so far:
· No. 2: white male; 20s
· No. 9: multi/mixed-race woman; 20s
· No. 19: white male; 30s
· No. 27: black male; 30s
· No. 44: white woman; 50s
· No. 52: black male; 30s
· No. 55: white woman; 50s
· No. 79: black male; 40s
· No. 85: multi/mixed-race woman; 40s
· No. 89: white woman; 50s
· No. 91: black woman; 60s
· No. 92: white woman; 40s.
I should have reported yesterday that the parties agreed to strike prospective jurors 108, 112, 122, 124, and 125 for cause.
Thanks to my friends at Alpha News (I sit on the board) for clipping the video in the tweets above.
CHAUVIN TRIAL DAY 10
KTLK’s Jon Justice and Drew Lee have called on me to act as their Chauvin case correspondent with regular appearances at the top of the show’s third hour at 8:00 a.m. (Central). We had a lot to talk about yesterday, including my preview of Judge Cahill’s rulings at 8:15. I thought some readers might find it of interest.
During the segment, I took up this AP story conveying an allegation of racism in the striking of juror 76. I find fault with the AP story for omitting Judge Cahill’s express finding that the striking of the juror by the defense was made in good faith for a legitimate nondiscriminatory reason. (The AP reporter whom I referred to in my comments is not one of the story’s two authors.)
Judge Cahill took the bench promptly at 8:15 yesterday as promised to announce his rulings on pending motions. Consistent with my previews on Justice & Drew and in my daily updates here, he denied Chauvin’s motions for change of venue and continuance. He shut down the State’s effort to introduce expert testimony from Dr. Vincent on George Floyd’s state of mind during his arrest on May 25, 2020, and granted Chauvin’s motion to admit some of the evidence deriving from Floyd’s arrest in May 2019. The video below includes Judge Cahill’s announcement of his rulings followed by comments from KARE 11’s Lou Raguse.
In his denial of the change of venue motion, Judge Cahill conceded his surprise at the effect of the city’s $27 million settlement of the wrongful death lawsuit brought in federal court on behalf of Floyd’s family. Via Zoom Judge Cahill himself examined each of the seven jurors seated before the announcement of the settlement by city officials at the end of last week. Based on his voir dire regarding their awareness of the settlement and its impact on them, Judge Cahill dismissed two of the seven previously seated jurors for cause.
He took this as illustrative of the problem of publicity that permeates the case and threatens Chauvin’s right to a fair trial, but deems the problem irremediable by change of venue. He counts on the process of voir dire to filter out jurors who have been unduly affected by the publicity and on the jurors’ avoidance of news on the case during their service to protect Chauvin’s fair trial right.
The law on venue addresses pretrial publicity. Late Thursday afternoon defense counsel Eric Nelson filed a memorandum of law along with three related exhibits (here, here, and here) supporting his new trial/change of venue motion. They go into some detail on the pervasive pretrial publicity in the Twin Cities.
Pretrial publicity obviously raises a serious fair trial problem. It may render a fair trial impossible. It has nevertheless been dealt with in voir dire and is a problem that is usually within the capacity of the judicial system to cope. Moreover, it raises the question of an alternative venue within Minnesota that is not susceptible to an obvious answer.
The deepest fair trial problem in this case, however, may be manifest in the closure of the courthouse and the martial security that now protects it. Voir dire has explored this problem to a limited extent as well, but I wonder if the judicial system is capable of dealing with it. I doubt it.
Following a break juror number 96 was called for voir dire. She learned of the settlement of the wrongful death lawsuit via a scrolling headline on television but said it had no impact on her. She described herself as a lover of dogs with a passion for the homeless and the issue of affordable housing. She takes nature walks to relax. She finds the court’s security arrangements reassuring.
She has seen clips of the video on the news two or three times. In her juror questionnaire she imputed the cause of Floyd’s death to his restraint by the police, but said she could set her opinions aside in this case, She described her opinion of Chauvin as “somewhat negative.” At this point in my notes, I wrote that I would want to strike her but she’s going to be the thirteenth juror, and that’s what she is.
She expressed sadness that a person lost his life over a $20 bill, but freely conceded that she didn’t know “what happened prior.” She thought “maybe there could have been a different outcome.”
She strongly agrees with the proposition that the police make her feel safe and strongly trusts the police. “We need law enforcement,” she said, citing the damage her place of employment sustained during the riots following Floyd’s death and its subsequent closure for a week. This case has touched an incredible number of us. Fearing riots and destruction all over again, to my point above, she expressed nervousness about the consequences of the verdict in this case.
She feels the magnitude of the responsibility of taking in the evidence and render the verdict in this case. She expressed the view that there are “strong opinions on both sides.” Despite my doubts about her above, taking all her remarks together, I thought she sounded perceptive and fair. Nelson passed her for cause. After further voir dire that added a bit more of interest — she doesn’t buy the racial critique of the police and the justice system — Steven Schleicher passed her for cause on behalf of the State. When she was seated as the thirteenth juror in the case, the court advised us she is a white woman in her 50’s.
The rest of the day was devoted to voir dire of jurors 99, 103, 109, 110, 111, and 113. We came away empty-handed. All but jurors 109 and 111 were excused for cause.
Juror 109 was subject to a peremptory strike by the prosecution and number 111 by the defense. Juror 111 is a St. John’s college student who works in a bar in St. Joseph, Minnesota. He is an intelligent all-American young man who is woke to the nth degree. He added to my doubt about the future of the United States. I thought the defense had to strike him and Nelson did.
Juror 113 sounded like another young man. He was carjacked in St. Paul on February 11 “next to Macalester College,” a beautiful neighborhood I have reason to visit every week. He expressed reservations about his ability to credit police testimony equally with that of other witnesses. Examined by Schleicher on this point, he could only get 95 percent of the way there. He was excused for cause on Nelson’s motion.
Judge Cahill announced that jurors 101, 106, and 107 have been excused by agreement of the parties while juror 102 was excused as no longer qualifying for jury service in the case.
At the end of the day, Judge Cahill caused some confusion among the reporters including me when he stated that they would be looking to add two more jurors next week to the 13 now seated. Judge Cahill had initially given the number as 16, then as 14. Following our expression of confusion the court advised us that “in accordance with its November 4, 2020, order, the Court will [seat] up to 16 jurors for the trial in the case State of Minnesota v Derek Chauvin.”
CHAUVIN TRIAL DAY 11
When I was trained as a trial lawyer defending companies in personal injury litigation, I was instructed by one of my mentors at the firm that we wanted to avoid post office workers on the jury. His advice became something of a standing joke. It may even have been a standing joke at the time I joined the firm, but watching voir dire in this case over the past two weeks has brought it back to mind.
We haven’t had a post office worker so far, but we have had public school teachers. They have proved to be the functional equivalent of post office workers in this case as to defendant Derek Chauvin, but then again, who in Hennepin County isn’t?
The State has invested in jury consultant Christina Marinakis to advise the numerous lawyers working to put Chauvin away. She has been in court at the counsel table every day so far. Given the fact that the average Hennepin County juror comes in with a negative attitude to Chauvin and a hostile opinion of his conduct in the famous video, I wonder why her services are necessary.
They are necessary because, whatever the outcome, Attorney General Keith Ellison doesn’t want his handling of the case to be second-guessed. He wants to be able to say he did everything in his power to convict Chauvin of the murder of George Floyd. After all, he’s up for reelection next year.
I take it from the examination conducted so far that the optimal juror for the prosecution is a public school teacher. Defense counsel Eric Nelson has rightly struck the two who have been called for voir dire. They would have been a nightmare for the defense.
I’m sure Ms. Marinakis has gone over the juror questionnaires and rendered a sophisticated assessment of who is most likely to have an open mind to Chauvin’s defense. Jurors with an open mind to Chauvin’s defenses are the best that he can hope for and the State is making sure that they stay off the jury. The State exercises its peremptory strikes on them.
Does any prospective Hennepin County juror really have an open mind on Chauvin? We found one yesterday, but he won’t be on the jury. The optimal defense juror is the deer hunter. He was juror number 116.
When juror number 116 identified within the first minute or so of his examination by Nelson as an avid fisherman — he fishes competitively — I guessed he would be good for Chauvin. He also identified in response to Schleicher’s examination as a deer hunter.
He had heard about the settlement of the wrongful death lawsuit and was concerned about the safety of his family in the event he served on the jury, but his view of Chauvin was “neutral.” Further, his view of Black Lives Matter was “somewhat unfavorable.” Why? Because he “doesn’t think that riots help.” He didn’t necessarily want to serve as a juror, but he felt that he could “absolutely” be fair and impartial. Schleicher spent a few minutes following up before using a peremptory challenge to strike him.
I start with juror number 116 stuck because he stuck out. Chauvin didn’t have a crack at many like him over the past two weeks and it didn’t take Schleicher long to figure that the State didn’t want him. I hope they didn’t pay the big bucks for that advice.
I thought the prosecution counterpart to juror number 116 yesterday was juror number 118, but she made it onto the jury. She was the fourteenth juror seated in the case. Having been passed for cause by both Schleicher and Nelson, she will serve as an alternate.
After her selection, we were apprised by the court that she is a white woman in her 20’s. She too professed indifference about her possible service on the jury. When she identified at the outset as a social worker, however, I thought Nelson needed to strike her. She sounds like an honest and empathetic woman. If you were in trouble, you would want to seek help from her.
She wants to hear everyone out. She wants to hear both sides of this case. Her impressions of both George Floyd and Derek Chauvin were “somewhat negative to neutral.” She wondered what prompted Chauvin to place his knee on Floyd’s neck. She wants to hear about Chauvin’s police training. As a social worker, she was trained to support everyone and extend “basic respect” to all. Based on her training as a social worker, she looks at every side of the issues she deals with.
She must live in the Minneapolis suburbs. When the riots hit following Floyd’s death, she was afraid of the migration of the violence to the suburbs. She also must have a handle on the reality principle insofar as she is concerned about her identification as a juror. However, she assured Nelson that she would not allow her concerns to affect her verdict. I would have wanted to hear more about that.
When Nelson passed her for cause, it was obvious she would pass muster with the prosecution. I don’t think you need a jury consultant to tell you that a social worker fits the profile of a juror who is likely to be favorable to the prosecution. Without knowing anything about the prospective jurors who are up next, I thought Nelson should have pressed her harder on the question of fear and on her commitment to impartiality. I thought he should have struck her if he couldn’t make out a challenge for cause.
We began the day with juror number 115. She was probably the true counterpart to the deer hunter. She is a nursing assistant who expressed no concerns for her physical safety. She was okay with the release of her name by the court at some point in the future when it is deemed safe. I take it that she does not contemplate a possible not guilty verdict and related consequences.
Her view of Chauvin is “somewhat negative.” George Floyd should not have had to die. It “was not his time to go.”
Did we need more? She participated in one of the protests within a week of Floyd’s death. She made a sign to march with a friend in the protest. (I missed what the sign said.)
She strongly agrees that blacks are not treated equally in the criminal justice system. Where did she get the information to support her opinion? She took a “gendered woman studies class in college.” Need I add that her opinion of Black Lives Matter is “very favorable.”
As Roberto Duran put it, “No más!” I don’t think Judge Cahill would have granted a challenge for cause, but Nelson didn’t try. He used a peremptory strike on her.
Juror number 117 confessed that her English was insufficient to follow expert testimony or even instructions in the law such as the presumption of innocence. Judge Cahill excused her for cause on his own motion.
Like everybody else, juror number 119 had heard about the world-beating settlement of the case by the city of Minneapolis for $27 million. He conceded that it affected his view of the case. He understood the presumption of innocence but he didn’t think he could afford it to Chauvin. Judge Cahill excused him for cause on his own motion.
Ditto juror number 120.
Juror number 121 presented as another case study in the profile of a juror adverse to Chauvin despite professing to be fair and impartial. He has worked in a retail warehouse for three years. He wants to serve as juror in the case and he has strong opinions about it.
When he described himself early on as interested in philosophy and social issues, I thought Nelson would have to strike him. The alternative title of Nietzsche’s Twilight of the Idols is How to Philosophize with a Hammer. This guy wanted to philosophize with a hammer on the jury.
He has watched the bystander video. He has watched the body cam video. He has a “very negative” opinion of Chauvin. He was of the view that Chauvin “used unnecessary and excessive force.” He thought that Floyd’s death resulted from it. And so on, and so on.
Yet he professed his ability to be neutral. In a sidebar out of our hearing, Nelson moved to strike him for cause. Judge Cahill denied the challenge for cause but expressly found that the juror was evasive and lacking in credibility.
Nelson exercised another of his peremptory challenges to strike the juror and cited the Minnesota Court of Appeals’ McKinley case in support of his challenge for cause (“A district court does not err when it sustains a for-cause challenge of a juror…because the juror is untruthful, evasive, or lacking in candor during voir dire”). In response, Judge Cahill stated that he would revisit the question if Nelson ran out of peremptory challenges while we remain in search of the fifteenth juror — the third alternate — today.
The court is calling in twelve prospective jurors in search of a third alternate who will be released next Monday if the other fourteen show up. When we find the third alternate today, we will take a break until the commencement of the trial proper with opening statements next Monday.
In the summary provided by the court after juror 118 was seated, here are the fourteen jurors — the twelve regular and two alternates — who will decide this case:
• No. 2: white male; 20s
• No. 9: multi/mixed-race woman; 20s
• No. 19: white male; 30s
• No. 27: black male; 30s
• No. 44: white woman; 50s
• No. 52: black male; 30s
• No. 55: white woman; 50s
• No. 79: black male; 40s
• No. 85: multi/mixed-race woman; 40s
• No. 89: white woman; 50s
• No. 91: black woman; 60s
• No. 92: white woman; 40s
• No. 96: white woman; 50s
• No. 118: white woman; 20s
CHAUVIN TRIAL DAY 12
In part 11 of this series yesterday I concluded that juror 116 — the deer hunter — filled out the profile of the optimal juror for Derek Chauvin. The prosecution exercised a peremptory challenge to strike him, as it has the few other prospective jurors who turned up with a neutral view of Chauvin and a mind open to his defenses.
Juror number 127 proved even better for Chauvin than the deer hunter. He was so good that Judge Cahill upheld the prosecution’s challenge to him for cause. He is a former over-the-road trucker who made a career change at age 50. Having found an apprentice program that served his needs, he now works in construction as a pipefitter.
He is hostile to the media based on their political agendas of one variety or another. He emphasized how “put off” he is by the media “trying to influence him.” He also emphasized his impartiality. “The evidence,” he said, should “stand on itself.”
As I guessed at this point, he is deeply in tune with the reality principle. He would have worried about the threat to his personal safety posed by jury service. Why? “After viewing Lake Street and all that, it’s concerning.” Lake Street is the heavily damaged east-west thoroughfare running through the heart of south Minneapolis that was targeted in the riots and looting following the death of George Floyd last year.
“I don’t want to be afraid to make the right choice,” he added with respect to the verdict he would render. “It’s not about them, it’s about a person’s life right now.”
This was the ideal juror for Chauvin. He respects and appreciates the police. Indeed, on a related point in the juror questionnaire, he pungently expressed his hostility to the movement to defund the police as “lunacy.”
I could go on, but let me cut it short. His favorable attitude toward the police and the testimony they would give made him the subject of a challenge for cause by prosecutor Steve Schleicher, the outside attorney contributing his services to Chauvin’s prosecution by the State. Judge Cahill upheld Schleicher’s challenge to him for cause under the Minnesota Supreme Court’s Logan case.
After Judge Cahill excused him for cause, he announced that he had thought about the defense challenge to juror 121 for cause overnight and revisited the Minnesota Court of Appeals decision in the McKinley case cited by defense counsel Eric Nelson on Monday. Based on McKinley Judge Cahill retroactively restored the peremptory challenge Nelson had exercised to strike him and upheld Nelson’s challenge to him for cause. As it turned out, however, Nelson had no occasion to use it.
Juror number 129 is the mother of three. She had concerns about the safety of her family if she were to serve in the case. She was extremely nervous stating her views as a potential juror. Judge Cahill examined her off audio and excused her for cause on his own motion. I inferred that her family responsibilities had something to do with it.
Juror number 130 reverted to a profile closer to the norm in this case. He was active in the protests that followed Floyd’s death. The video and “everything [he] saw” affected him. He conceded that he would probably be lying if said he could be fair and impartial to Chauvin. Judge Cahill also excused him for cause on his own motion.
I thought we would come away with the fifteenth juror that Judge Cahill wanted before noon. We were running up against my imaginary deadline with juror 131. He is an accountant with plans to move out of the state at the end of May. He is interested in sports. I understood him to have a stake in the NCAA men’s basketball tournament.
He is familiar with the facts of the case and the video from news accounts. He has a “somewhat negative” impression of Chauvin and his fellow officers during Floyd’s arrest. He thinks the duration of Floyd’s restraint “may have been unnecessary.” He has a neutral impression of Floyd. I assessed him in my notes at this point as a tough juror for Chauvin.
At work, he has discussed what can be done “to end racism.” He wants to do his part. He started by reading a book on the subject — what book? he couldn’t remember — but he didn’t quite finish it. He thinks that blacks are treated unfairly in the criminal justice system.
He holds himself out as an analytical person. He droned on in a monotone that sounded like a parody of an accountant. He stated that he would focus any decision on the evidence produced in court. I have in my notes that I don’t believe him, but I can’t articulate why. Nelson passed him for cause at this point.
I think Schleicher and the State’s jury consultant must also have assessed the accountant as favorable to their case. Schleicher’s initial questions to him asked about the new puppy he and his wife have taken on. Schleicher seemed to be killing time until he passed the juror for cause as well.
Schleicher elicited the juror’s attitude toward athletes taking a knee during the national anthem. He is not crazy about it. He would prefer the expression of their views in a different form but understands their intention.
He is not altogether on board with Black Lives Matter. He doesn’t hold them responsible for the rioting but thought they may have contributed to it. He strongly disagrees with defunding the police. “They perform a valuable service to society,” he said. As for Blue Lives Matter, “They haven’t done enough to change the conversation” on “equality and gun control.”
As I say, I think Schleicher was killing time. Just before my imaginary noon deadline, Schleicher passed him for cause. He is the fifteenth juror Judge Cahill wanted in case any of the first fourteen don’t show up for opening statements on Monday. The courtroom as reconfigured to meet public health recommendations can only accommodate fourteen jurors.
Court is adjourned until Monday. Here are the final fifteen jurors — the first twelve are regulars, the others alternates — presented by the court:
• No. 2: white male; 20s
• No. 9: multi/mixed-race woman; 20s
• No. 19: white male; 30s
• No. 27: black male; 30s
• No. 44: white woman; 50s
• No. 52: black male; 30s
• No. 55: white woman; 50s
• No. 79: black male; 40s
• No. 85: multi/mixed-race woman; 40s
• No. 89: white woman; 50s
• No. 91: black woman; 60s
• No. 92: white woman; 40s
• No. 96: white woman; 50s
• No. 118: white woman; 20s
• No. 131: white man; 20s
Court TV has compiled a retrospective on the jurors each side has removed through peremptory strikes. The talking heads of CourtTV are in search of a racial angle. The jurors struck by Schleicher on behalf of the State are all white. The jurors struck by Nelson make up a rainbow coalition adverse to Chauvin in one way or another, but I don’t think that’s quite how Court TV put it. I call the ten-minute Court TV video “A toast to those who are gone.”
After Jury Selection, The Formal Trial Began On Monday, March 29th
Chauvin Trial Day 1 (Updated)
I have been struggling with a bug that has sapped my energy and shortened my day yesterday. These notes are accordingly abbreviated.
On Sunday I complained that the Star Tribune sought to bypass the issues in the case in the interest of framing it as a (racial) passion play. The Star Tribune is of course not alone in this regard, but is it really needed or illuminating at this point?
The Sunday page-one story I cited was written by reporters Reid Forgrave and Maya Rao. On Monday, however, the Star Tribune published reporter Chao Xiong’s examination of the cause of death issue in George Floyd’s cause of death at heart of arguments in Chauvin trial.”
When I saw Chao yesterday morning I congratulated Chao on the story. He told me he had a hard time finding people who would talk to him for it. Given my comments on Sunday, I want to note it for the record.
All fifteen jurors selected showed up to sit on the case yesterday morning. Judge Cahill dismissed the fifteenth juror selected before swearing the fourteen in. The fifteenth was the third alternate.
In my rundown on the jury on Sunday, I assumed that the first twelve jurors serve as the regulars who will deliberate on the verdict if they make it to the end and that jurors thirteen and fourteen are alternates. I assume that to be true even though no such announcement has been made.
Jerry Blackwell is one of the attorneys contributing his services to the prosecution without charge. He made the opening statement on behalf of the State yesterday. I have embedded the video below.
Although I was surprised by his detached tone, I thought Blackwell did an excellent job. I was not surprised by his use of the famous bystander video that everyone has seen.
An opening statement is not argument. It is to be limited to a summary of the evidence that will be introduced in the case. It should provide a roadmap to the case the attorney will present to the jury.
The underlying message of Blackwell’s opening is that the State has a ton of evidence they will introduce to prove up the charges against Derek Chauvin. Among the witnesses who will testify against Chauvin are the Minneapolis Chief of Police and other Minneapolis police officers.
The theme of his opening was a relentless: 9:29. Nine minutes and 29 seconds is the length of time Chauvin had his knee on George Floyd’s neck.
Blackwell buried the issue of Floyd’s drug intoxication at the time of the incident until somewhere near the end of his remarks. According to Blackwell, Floyd’s years of drug abuse had rendered him tolerant of the levels found in his system following his death.
Blackwell anticipated and undercut the testimony of Hennepin County Medical Examiner Andrew Baker. He will call a raft of experts to deal with it, including a doctor who trained Dr. Baker as a medical examiner.
Blackwell’s opening went on for around 55 minutes. Although there was thematic repetition, the themes were effective and the substance was powerful.
Defense counsel Eric Nelson immediately followed Blackwell. I have embedded the video below.
When Nelson rose to speak I wanted to hear what his case was — what he would prove on behalf of Chauvin. Nelson began, however, by invoking reasonable doubt. This is a confession of weakness. I cannot imagine a weaker point with which to lead off.
Nelson did nothing to set the video in the larger context afforded by the body cam videos. He did nothing to exploit the holes in Blackwell’s opening. Maybe they aren’t holes.
Nelson discussed the evidence of Floyd’s drug intoxication and consumption at the time of the incident. The prosecution contends that Chauvin asphyxiated Floyd. Nelson referred to the paucity of physical evidence on autopsy supporting asphyxiation. The State wasn’t satisfied with Baker’s work, he said, so they contracted other physicians for this case.
Nelson finished in about 23 minutes. All in all, I thought it was a perfunctory performance.
Following the opening statements the State called three witnesses. The first was dispatcher Jena Scurry. The direct examination by Assistant Attorney General Matthew Frank was a plodding bore, but she was a good witness for the State. Watching the scene unfold at 38th and Chicago on a video monitor in her office, she thought “something wasn’t right.” She called the cops — MPR sergeant David Fleeker (I’m not sure how his name is spelled) on the cops.
Next up was bystander Alisha Oyler, who was working on May 25 at the Speedway Station across the street from Cup Foods. Although she took several videos, she professed not to remember much about the events. Are you kidding me? She was a terrible witness except insofar as she gave the State the opportunity to replay the famous bystander video by juxtaposing it with Oyler’s.
At this point I headed off for an urgent care visit. I watched the testimony of martial arts expert David Williams II on my cell phone. Williams was a bystander on the scene at the time of the incident. He can be heard on the video. I didn’t realize that martial arts experience made him an expert on cause of death, but he opined on the “blood choke” he observed Chauvin working on Floyd. He watched it kill him like a fish.
Williams’s testimony beyond his observations at the time are objectionable in my opinion, [UPDATE: but Judge Cahill disagrees. See his order on defendant’s motions in limine paragraph 22. I regret this oversight in my original comments here. Consistent with his ruling, Judge Cahill struck Williams’s assertion that Chauvin’s choke killed Floyd, but the jury heard it.]
This guy is a devastating witness for the State. Williams continues this morning.
NOTE: In the interest of clarity I have retitled my previous 12 installments to reflect their focus on jury selection. I am starting the numerical sequence over with this installment to reflect the first day of the trial proper.
Chauvin Trial Day 2
Minnesota martial arts practitioner Donald Williams returned to the stand and concluded testimony that began Monday afternoon. He reiterated his observations culminating in Floyd’s death: tremendous pain in Floyd’s face, his eyes rolling back in his head, his mouth open, drooling, gasping for air. All the while Chauvin kept his knee on Floyd’s neck, Williams’s “energy” did not let him feel he could intervene. After Floyd was loaded into the ambulance, Williams called 911 believing he had witnessed a murder.
The scope Judge Cahill afforded Williams on direct examination required penetrating cross-examination. I didn’t think defense counsel Eric Nelson rose to the occasion either in his attempts to distinguish mixed martial arts from police restraint or in his recitation of the vulgar names Williams had called Chauvin as Floyd lay prone under Chauvin’s knee. Like the bystanders who followed Williams to the stand, I thought Williams’s anger was understandable given his perception of what he had witnessed.
Williams drew on his training in mixed martial arts to speak with authority on the issues in the case. He referred to his education at “the academy” (of mixed martial arts) and his experience in the ring as “an artist.”
An attorney friend wrote me to comment on Judge Cahill’s admission of Williams’s testimony about chokeholds and related issues. He thought Judge Cahill should not have allowed it, but suggested that Nelson’s cross should have pounded away at key points:
The easy stuff–you are not a physician, not a pathologist, have never seen anyone asphyxiated….
You have never conducted an autopsy and have no idea how to do one.
In your opinion did you assume that Floyd’s breathing was normal before he was restrained by Chauvin?
Did you assume his lung function was normal?
Did you consider whether he was suffering from fentanyl intoxication?
Did you consider whether his lungs had an abnormal amount of fluid in
them due to fentanyl and were not functioning properly?
Mr. MMA you understand that here in Hennepin County when anyone dies under suspicious circumstances the County Examiner, who is a pathologist, conducts an autopsy?
You are not asking this jury to consider your opinion of the cause of
the death of Mr. Floyd as equal in weight to the official autopsy by
the Hennepin County Medical Examiner.
The point is that Williams’s pretensions to expertise should have been punctured on cross. I don’t think Nelson put up a fight on the basic points.
After Williams we heard from five more bystanders whom I want to take up as a group:
1. Examined by Jerry Blackwell, Darnella Frazier just turned 18. She is the teenager who recorded the video that approximately everyone saw after she disseminated it via Facebook. The prosecution took her testimony as an opportunity to review the video. She was choked with emotion throughout her direct examination. After Nelson asked her on cross whether the video had changed her life — why? I don’t know — Blackwell had her fill out the details on redirect. She sees Floyd as her father, her cousins, her brothers, her uncles, her friends because they are all black. “And I look at that and I look at how that could have been one of them. It’s been nights I stayed up apologizing and, and apologizing to George Floyd for not doing more…”
2. Darnella’s nine-year-old cousin Judea testified briefly without cross-examination. Judea can be seen in photos and stills with Darnella. She was wearing a t-shirt with LOVE printed on it. Judea saw Chauvin with his knee on Floyd’s neck. What she saw made her “sad and kinda mad.”
3. Examined by Assistant Attorney General Erin Eldridge, Alyssa is another 18-year-old bystander who recorded video of the scene. She lives in the neighborhood and went to Cup Foods with her friend Kailyn to buy snacks and an aux cord for her car. She saw Chauvin with his knee on Floyd’s neck, and two other officers holding him down. Alyssa’s testimony gave the prosecution another opportunity to play a video of the incident.
“At first he was vocal and then he got less vocal,” she said. “You could tell he was talking with smaller and smaller breaths, and he would spit a little when he talked, and he tried to move his head because he was uncomfortable.” She described Floyd’s descent into unconsciousness: “You could see in his face that he was slowly not being able to breathe, his eyes were rolling back, and at one point he just kind of sat there,” she said. “Or laid there.” Talking about it with difficulty, she cried. “It was difficult because I felt like there wasn’t really anything that I could do as a bystander,” she said. “I felt like I was failing him.”
4. Examined by Eldridge, Alyssa’s friend Kailyn accompanied Alyssa to Cup Foods on May 25. She lent Alyssa the cell phone she used to record her video of the incident. Alyssa asked her to remain in the car. A “gut feeling” prompted her to get out of the car. She heard Floyd calling out from under Chauvin’s knee. She felt that Chauvin’s restraint of Floyd wasn’t needed. She had a gut feeling Floyd was dead before the ambulance arrived. Seeing Chauvin reach for his Mace in response to the bystanders, she was afraid of him. Nelson passed on cross-examination.
5. Examined by Deputy Attorney General Matthew Frank, the last witness of the day was Minneapolis firefighter and EMT Genevieve Hansen. Her testimony continues this morning. She lives in the neighborhood of Cup Foods and was on a walk when she happened on the scene. She too took a video on the scene and called 911 after the ambulance left the scene to complain about the officers’ treatment of Floyd. It is evident that she is heavily invested in Chauvin’s conviction.
She walked around the scene after her arrival. She saw the officers restraining Floyd. She was concerned because he wasn’t moving and he was cuffed, with three men restraining him. His face was swollen and smashed into the ground. She noticed fluid coming from his body. She assessed Floyd as having an altered consciousness in which he was oblivious to painful stimuli. She identified herself as an EMT and wanted to render medical assistance. She wanted Floyd’s pulse to be taken. She is “totally distressed” she was unable to do so.
Nelson began his cross-examination. Among the points he made is that she didn’t know that the officers had already requested Code 3 medical assistance on the scene before Hansen arrived. Hansen said she didn’t believe it.
She is an argumentative witness, to say the least. She argued with Nelson. She argued with Judge Cahill. When she refused to relent, Judge Cahill excused her to return this morning. I’m embedding the two-hour video of Hansen’s testimony yesterday below. It begins at about 5:00 with Hansen’s video and the recording of her 911 call. Nelson’s cross begins at about 1:09:30.
The testimony of these bystander witnesses featured videos and photographs of the incident. The testimony was raw and emotional. I’m not sure why, but the witnesses were allowed to testify to the effect of the incident on them. I didn’t think that Nelson found a productive line of cross-examination on either Darnella or Alyssa. Hansen is another story.
Chauvin Trial Day 3
Firefighter EMT Genevieve Hanson returned to the stand for cross-examination by defense counsel Eric Nelson Wednesday morning. Did she show the officers on the scene identification as a firefighter? She did not. Nelson had nothing more for her. With a question or two more from prosecutor Matthew Frank on redirect — she believed George Floyd needed immediate medical attention, but the officers other than Tou Thao didn’t talk to her — she was released.
Frank then called 19-year-old former Cup Foods cashier Christopher Martin to the stand. In May 2020 he was living with his mother and sister in an apartment above Cup Foods while pulling his shifts at the store from 3:00-8:00 p.m. Martin’s testimony took us inside Cup Foods to observe the events leading to George Floyd’s fateful arrest on May 25. Frank drew on Cup Foods surveillance video from inside the store to accompany Martin’s testimony. This is a video we have not seen before.
The video shows Floyd hanging around in the store. He seems to have had his phone serviced in the store that day. He appears jumpy but genial in the video.
Martin chatted with Floyd before Floyd purchased cigarettes with the counterfeit $20 bill that prompted the call to the police. Based on Floyd’s delayed response to Martin’s question and his difficulty articulating, Martin figured Floyd was high. A few minutes later Martin sold Floyd a pack of cigarettes that Floyd purchased with a $20 bill that Martin thought was obviously counterfeit.
The rule at Cup Foods was that if an employee took a counterfeit bill it was docked from his pay. When Floyd left the store Martin raised it with his manager. Martin went out twice with coworkers to Floyd’s Mercedes to seek payment. They spoke to Floyd’s friend on the passenger side (I understood that he too had tried to pass Martin a counterfeit bill) while Floyd mimed “woe is me” in the driver’s seat.
At the manager’s instruction, one of the coworkers called the police. Two officers arrived and met with the manager, who showed them where Floyd was parked across the street.
Within a few minutes, Martin heard a commotion outside the store. He heard yelling and screaming. He saw Derek Chauvin with his knee on Floyd’s neck. He called his mom and told her not to come downstairs. He started a recording of the police subduing Floyd but deleted it after the incident. He said he was emotional watching the arrest, expressing “disbelief and guilt” over what he views as his contribution to it.
He saw the ambulance arrive and watched the officers and crew load Floyd onto it. Watching the ambulance head off, he thought they were not headed to the hospital and that Floyd had died. Martin is a credible and effective witness.
The State then called Christopher Belfrey. He too lives in the neighborhood. Forty-five years old, Belfrey is another of the bystanders who recorded a video of the incident leading to Floyd’s death, though his recording begins with Floyd’s initial arrest in the Mercedes. He was startled by the officer pulling a handgun on Floyd. He stopped recording and moved his car when he heard sirens approaching. He resumed recording. He said he felt “Kinda scared” when one of the officers stared at him. He thought the incident was over when he saw Floyd placed in one of the police squads and drove off with his fiance. Nelson let him go without cross-examination.
The State then called Charles McMillian. Sixty-one years old, Mr. McMilliam proved in his own way to be a devastating witness. He was a bystander who urged Floyd to cooperate with the police. He can be heard on the video telling Floyd “You can’t win.”
He began sobbing after prosecutor Erin Eldridge played police bodycam video of Floyd saying over and over that he couldn’t breathe and calling for his mother. “Oh my God,” Mr. McMillian said as he hung his head and cried. Hearing Floyd call for his mama, Mr. McMillian stated, “I feel helpless. I don’t have a mama either, but I understand him.” He said his mother died this past June. As events unfolded, his instinct told him “it was over for Mr. Floyd.”
The State played video we hadn’t seen before during McMillian’s testimony. He can be heard talking to Chauvin. He told Chauvin on the scene after Floyd’s departure that he was “a maggot.” He told Chauvin his knee on Floyd’s neck — “that’s wrong.” Chauvin responded he “had to control a sizable guy.” Again, Nelson passed on cross-examination.
The 47-minute video below captures all of Mr. McMillian’s testimony. It is well worth watching in its entirety.
Pro bono prosecutor Steve Schleicher called Minneapolis Police Lt. James Rugel to close out the day. Rugel runs the department’s technology unit. His testimony laid the foundation for the introduction of the department surveillance and bodycam video.
Without much in the way of commentary from Rugel, Schleicher played each of the officer’s bodycam footage of the incident leading to Floyd’s death. The video below includes Rugel’s foundational testimony as well as the bodycam video played for the jury.
The bodycam video is the first evidence of the larger context of the knee on the neck scenario. We haven’t heard much about it from either the prosecution or the defense. It’s easy to miss, but you can hear Floyd explaining his drug use — “I was just hooping earlier.” One of the officers describes Floyd’s eyes as “shaking back and forth really fast. Is that PCP?” I think it is Officer Kueng who observes to Floyd, “You’ve got foam around your mouth too.”
We see the officers try to get Floyd seated in the squad car. He is wildly resisting and yelling he can’t breathe. Somewhere along the way, it is noted that Chauvin’s body camera was under the squad car.
CHAUVIN TRIAL DAY 4
The State opened the day with the testimony of George Floyd’s girlfriend Courteney Ross. She discussed her relationship with Floyd dating to the day in August 2017 that he asked her how she was doing when she was waiting in the lobby of Harbor Lights to visit her son’s father. She recalled Floyd asking her, “Sis, you okay, Sis?” She said she wasn’t and he asked if he could pray with her. Floyd was working at Harbor Lights as a security guard.
Ross was called to provide so-called “spark of life” evidence regarding Floyd. Such evidence is admissible in a murder case to provide a human portrait of the victim. In this case, it presents one more factor contributing to the prejudice Chauvin must overcome to have his case determined on the facts.
The State also used Ross’s testimony to raise the issue of Floyd’s drug use in a sympathetic form. Both Ross and Floyd struggled with opiate addictions in the course of their relationship. She said that they both suffered from chronic pain and started with prescription opiates. They consumed illegally obtained oxycontin and oxycodone together off and on throughout their relationship.
On his fateful trip to Cup Foods Floyd was accompanied by Morries Hall (the man in red) and Shawanda Hall (the woman in the back seat). I take it from Ross’s testimony that they were Floyd’s suppliers. Earlier this week Morries Hall filed a notice that, if called as a witness, he would assert the Fifth Amendment.
In March 2020 Ross saw Floyd’s behavior change to reflect current drug use. They took bigger pills that month that had a stimulative effect on her. In early March she found him doubled over in pain, complaining that his stomach hurt. He was suffering an overdose — she apparently told the FBI it was a heroin overdose — requiring some five days in the hospital. Ross noticed foam around his mouth as she drove him to the hospital.
Floyd was using again in May 2020. The May pills had the same effect on her as the big pills they had previously consumed.
Ross was followed by three witnesses who provided emergency medical services to Floyd on May 25: Seth Bravinder, Derek Smith, and Jeremy Norton. What I got out of these witnesses in excruciating detail is that Floyd was dead when he was picked up at the scene and that efforts to revive him were unsuccessful. He had no pulse from the first time he was checked at the scene.
The State closed the day with retired Minneapolis police sergeant David Pleoger. I take it that Pleoger is one of the many Minneapolis officers who retired in the aftermath of Floyd’s death.
Pleoger is an important witness. He was the shift leader when Floyd died and took the call from Jenna Scurry asking about the use of force she observed on her monitor in the dispatch center. Pleoger evaluated the use of force under department policy as a routine part of his job. He went to the scene and interacted with the officers both at the scene and at Hennepin County Medical Center, where Floyd had been taken. Floyd’s death, however, elevated the case to superior authorities.
On Pleoger’s bodycam Chauvin is heard speaking with Pleoger about the incident at the scene: “Not really, but had to hold the guy down, he was going crazy. Wouldn’t go in the back of the squad.” Chauvin did not immediately disclose that he placed his knee on Floyd’s neck.
Schleicher elicited Pleoger’s opinion concerning the moment when the use of force against Floyd should have ended. He replied: “When Mr. Floyd was no longer offering up any resistance to the officers, they could have ended their restraint.” Pleoger agreed with Schleicer that it should have ended when Floyd was handcuffed and on the ground.
Prosecutor Steve Schleicher got the answers he wanted from Pleoger, but I thought his testimony was hedged in tone and unenthusiastic. The words came out right, but something was off.
I have posted the full video of Pleoger’s testimony below. The testimony begins at about 15:00. The testimony referred to immediately above comes at about 01:21:00.
On Friday Minneapolis Police Department Lieutenant Richard Zimmerman took the stand. He is the department’s senior homicide investigator and its most senior officer period. He was called to the scene on the evening of George Floyd’s death. Having subsequently watched bodycam videos of the restraint of George Floyd, he found it unreasonable and excessive in relevant respects under department policy.
Zimmerman is an extremely credible witness. He seems to me like a character who might have walked off the TV series Homicide. Defense counsel Eric Nelson found no meaningful avenue of cross-examination with him. He is a strong witness in support of the prosecution.
I have not found a video of Zimmerman’s testimony in its entirety. The chunk below is the best I could do. It provides a substantial glimpse of how it went.
Here in Minnesota and around the country, all eyes are on the trial of former Minneapolis police officer Derek Chauvin for the alleged murder of George Floyd. We are nearing the end of the prosecution’s case, so this is perhaps an opportune moment to assess what has happened so far. While not listening to every moment of the testimony, I have followed the trial closely. Much could be said, but here are a few big-picture observations:
* The defense got off to a slow start. Eric Nelson, Chauvin’s only in-court lawyer, was rather passive during jury selection and, I thought, delivered a sub-par opening statement. But he has gained steam during cross-examination of the state’s witnesses, which he has done skillfully. And the jury has seen him as one fallible man standing against the immense power of the state. This might create sympathy in unexpected quarters.
* The state preemptively showed the officers’ body cam videos that revealed, not just the last minutes while Floyd was being restrained on the street, but the 20 minutes or so that preceded. This was certainly a revelation to most or all of the jurors. Based on their answers during jury selection, they had all seen the famous last nine minutes that were posted on social media by a bystander, but had no idea of how George Floyd, big and strong and out of his mind on drugs, had battled police officers to a standoff, culminating in their acceding to his demand that he lie on the street rather than sit in the back of their squad car while waiting for an ambulance. Jurors also were probably surprised to learn that Floyd had been foaming at the mouth and complaining of not being able to breathe from the moment when officers came on the scene.
* George Floyd’s girlfriend was a key witness. The state tried to present her as a let’s-go-for-a-walk-in-the-park flower child, but it soon became evident on cross-examination that she and Floyd were drug addicts. This was the first time the jury learned that Floyd’s death may have been caused by a fentanyl overdose, not by police officers kneeling on him. In fact, Floyd overdosed on fentanyl in March, just two months before his death, and spent five days in the hospital. Perhaps he took just a little bit more, a fatal overdose, in May.
* The state presented a parade of Minneapolis Police Department witnesses, including the Chief of Police, who threw Chauvin under the bus, alleging that he violated MPD policies in his restraint of Floyd. They were followed by use-of-force expert witnesses. But how did the jury view this testimony? Jurors may have been surprised to learn that there was nothing wrong with kneeling on Floyd on the street. That was consistent with MPD guidelines, and the experts agreed it was fine. Their complaint is that Chauvin and the others should have gotten off Floyd when he stopped struggling and grew quiet, and should have turned him over on his side. But there is no MPD policy that clearly states this. Rather, the Chief and other witnesses expressed their opinions as to how the broad, general use-of-force policy should be applied in this instance.
* So the state has effectively reduced its claims against Chauvin from nine minutes to four. I am willing to believe that it would have been better practice for Chauvin and the others to get off Floyd at some point, but seriously: failure to get off a guy who is crazed with drugs and has been battling with officers for 15 minutes, and more or less winning, is murder? or manslaughter? I don’t think that is an easy sell.
* Yesterday, a senior official of Minnesota’s Bureau of Criminal Apprehension testified. Nelson’s cross-examination was effective. He brought out the fact that the normal procedure is for the BCA to investigate a crime or alleged crime, and write a report. That report is delivered to the relevant authorities, who then decide whether to bring criminal charges against one or more defendants. But that normal procedure wasn’t followed here. Rather, criminal charges were brought almost immediately against Chauvin and the other officers, while the investigation was just beginning. Charge first, investigate later–that is how things proceeded, under political pressure. Watch for this to be a significant theme in Nelson’s closing argument.
* The other subtext of Nelson’s cross-examination was the sheer power of the state that is determined to destroy his client: 50 BCA officers, 27 FBI agents, 440 reports, hundreds of witnesses interviewed, and so on. Atticus Finch and his client Tom Robinson faced better odds.
* Moreover, embarrassing testimony emerged yesterday. Two vehicles, the SUV in which Floyd, his drug dealer, and a woman friend were seated, and the MPD squad car, were impounded and processed by the Bureau of Criminal Apprehension. But white pills in those vehicles were left unchecked. Why? Because the BCA didn’t realize that drugs were a factor in the case. It was only in January, as a result of a request by defense counsel, that the BCA finally identified and tested pills in one of the vehicles that turned out to contain fentanyl–a lethal dose of which was in Floyd’s blood when he died.
So, is there any chance that Derek Chauvin might be acquitted? As you can tell from these notes, I have become sympathetic to his defense. But it is too early to tell what conclusion the evidence will point toward.
The prosecution will conclude its case with expert witnesses on the cause of death, the key issue in the case. Did Minneapolis police officers kill George Floyd by kneeling on him, as the local and national press has relentlessly asserted for nearly a year? Or did Floyd die of a drug overdose, with the officers essentially bystanders? The medical evidence on both sides will be critical. We know that when he died, Floyd had something like three times a lethal dose of fentanyl in his system. How will the prosecution try to overcome that fact?
Again, the jury is likely to be surprised. Far from claiming that the officers’ kneeling on Floyd–entirely proper, at least for the first five minutes or so–killed him outright, I expect the prosecution will argue that the officers’ restraint was a contributing factor in the larger context of Floyd’s drug overdose and other health issues. Minnesota law says that a defendant can be guilty of manslaughter or murder if his wrongful conduct was a “substantial causal factor” in the decedent’s death.
When this trial began, I doubt that any juror expected the prosecution to argue that whatever Derek Chauvin did was not the sole cause, or the primary cause, of George Floyd’s death, but rather a “substantial causal factor” along with a fentanyl overdose and other serious health issues. Will the jury be willing to destroy Derek Chauvin’s life and send him to prison on this theory?
That raises, once again, the question of whether Derek Chauvin can possibly get a fair trial. Everyone knows that if the jury doesn’t convict, and probably if it doesn’t convict Chauvin of murder, the city of Minneapolis will go up in flames. This is why the power of the state is arrayed so unanimously against him. Chauvin may have misjudged, may have screwed up, for four minutes on May 25, 2020. But he is being sacrificed to raisons d’État.
Everyone is against him, including his own police department. The three officers who were with Chauvin on May 25, and who also have been charged, presumably won’t testify. Their lawyers will insist that they take the 5th–as, by the way, Floyd’s drug dealer did yesterday. The dealer was with Floyd on May 25 and pled the 5th on the ground that he may be prosecuted for supplying Floyd with the overdose of fentanyl that killed him. But the jury won’t see that.
The trial so far as been the world vs. Derek Chauvin and Eric Nelson. While the “dream team” prosecution has rotated counsel from the Attorney General’s office and various high-priced lawyers from Minnesota and D.C. who are working for free, Eric Nelson, outmanned and outgunned, has stood up alone for his client. Over the last two weeks, he has grown visibly tired and yesterday he lost control over some exhibits through sheer exhaustion. (No one who hasn’t tried a jury case, even one of relatively modest length like the Chauvin trial, can understand what hard work it is.) Maybe the jury will look down on him, compared with the well-heeled prosecution team. Then again, maybe they will relate to a classic underdog story.
The trial’s result likely will come down to the medical testimony on both sides that we have not yet seen. But so far, I think Chauvin’s defense has held its own and probably has surprised most members of the jury. The political class may have expected to usher Derek Chauvin off to speedy oblivion for the sake of a greater good, but instead, they have a fight on their hands.