As unappealing as it sounds, Derek Chauvin may get a new trial. And it might not be in Minneapolis.
That could be the outcome of the former Minneapolis police officer's appeal, heard earlier this week by the Minnesota Court of Appeals nearly two years after Chauvin was convicted by a Hennepin County District Court jury of unintentional second-degree murder of George Floyd in May 2020. He was sentenced to 22 ½ years' imprisonment.
While Chauvin raised more than a dozen issues in his appeal brief, the core of the argument presented to a three-judge panel in St. Paul by his appellate lawyer, William Mohrman, who did not represent Chauvin at trial, was that the volatile circumstances surrounding the blindingly high-profile proceedings nearly two years ago deprived the accused of his constitutional right to a fair trial.
The concern that Chauvin might not be able to be fairly tried by a jury of his peers, as guaranteed by the Sixth Amendment to the U.S. Constitution and the parallel provision of the Minnesota Constitution, was first raised in this space — by me — right after the officer was charged a few days following Floyd's death on the street outside a south Minneapolis grocery on the evening of Memorial Day 2020. The incident was witnessed by nearly everyone on multiple occasions thanks to video recorded on a youthful bystander's cellphone.
The question posed then, at the height of the frenzy over the slaying, was: Can Derek Chauvin get a fair trial? The issue now pending before the appellate jurists is: Did he?
The answer may well be no, based upon reasonably compelling arguments made by Chauvin's skillful appellate counsel. If so, a new trial could be mandated and, if that occurs, it might be conducted elsewhere in the state.
Courts rarely (hardly ever in Minnesota) overturn criminal jury verdicts because of prejudicial publicity, dating back to the infamous Sam Sheppard murder trial in the 1950s. More than a decade afterward, the U.S. Supreme Court reversed the verdict that the Cleveland osteopath killed his wife, pointing to the media-induced frenetic "carnival atmosphere" of the proceedings.
But such reversals are outliers, and the death knell for those types of challenges may have been sounded last year when the high court upheld the death penalty imposed by a jury in Boston on the surviving brother of the 2013 Boston Marathon bombing, roundly rejecting a prejudicial publicity claim.
In Chauvin's case, while there were substantial prejudicial statements made before the trial about the defendant's guilt from numerous high-ranking public officials — like the Minneapolis mayor, chief of police and many others — Chauvin's appeal steered clear of castigating the extensive pretrial media reporting and trial coverage and focused instead on the unusual conditions under which the proceeding occurred.
The trial judge, Peter Cahill, did an admirable and a tireless job of handling the case, including guiding the lawyers through the jury selection process, known as voir dire, to ferret out biased jurors. But the surrounding circumstances were at the crux of the argument presented by Chauvin's lawyer.
Mohrman pointed to the stark, fortress-type defenses that surrounded the courthouse in downtown Minneapolis, where the trial took place, including concrete barriers, barbed wire and well-armed National Guard troops. That "physical presence" and the atmosphere it produced, he argued, was a daily reminder to the jury of the potential for renewed civil unrest, like the destructive disturbances that had immediately following the incident.
Those circumstances, he asserted, unduly influenced the jury to the detriment of Chauvin, instilling fear in jurors, whom he characterized as "having a stake in the outcome" as they could be caught up in any ensuing unrest resulting from an acquittal. They "lived here," he emphasized, suggesting the same intimidating features would not exist for a jury empaneled somewhere else in the state.
Beyond the improbable request that the court overturn the verdict and acquit the officer, Chauvin's lawyer asked for a new trial to be conducted elsewhere in the state, where a more neutral, less tainted jury pool might have existed.
Such a change of venue, which the judge denied, would not necessarily be curative. As the prosecution argued before Judge Cahill in opposing transfer to an outstate forum, trying the case outside of the Twin Cities metro area would not substantially negate potential juror prejudice because the Floyd homicide was so widely publicized around the state, the nation and the world.
On the other hand, a new trial elsewhere could also be advantageous for Chauvin by empaneling fewer minority jurors than he faced in Hennepin County, as well as more outstate residents believed often to hold more favorable views of police.
But moving the trial to somewhere outside the metro area would not necessarily be called for now, even if a new trial is ordered by the appellate jurists. The passage of nearly three years since Floyd was killed, along with cooling of some of the fervor surrounding it, could lessen the siege atmosphere that accompanied the first trial.
Meanwhile, as a practical matter, since Chauvin has pleaded guilty to a federal civil rights offense and been sentenced to 21 years incarceration, which he is currently serving in Arizona, even a reversal of his state guilty verdict won't change the fact that Chauvin will be in federal confinement for a long time.
The death of George Floyd at the hands of Derek Chauvin changed the city, state, nation and world, while leaving in place many racial inequities. No outcome of Chauvin's appeal or any new trial that might result from it will change that reality.
Marshall H. Tanick is a Twin Cities constitutional law attorney.