George Floyd — Derek Chauvin’s Trial in Floyd Death Is on Track

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Derek Chauvin, the former Minneapolis police officer facing murder charges in the death of George Floyd, is introduced to potential jurors during jury selection in his trial in Minneapolis, Minn., March 15, 2021. (Jane Rosenberg/Reuters)

Whether jury selection ends today or later in the week, opening statements are set to begin next Monday morning.

The court has denied former Minneapolis officer Derek Chauvin’s motions for a delay and a change of venue, clearing the way for commencement of his murder trial arising out of last May’s death of George Floyd in police custody. Jury selection has been underway for two weeks and is nearing the number of jurors needed for the trial, which should thus proceed as scheduled next Monday, March 29.

The motions for a continuance and venue change arose out of the recent announcement that Minneapolis will pay $27 million to the Floyd family, which had sued the city under the federal civil-rights laws. This is said to be a record-high settlement in the pretrial stage of such litigation.

As Rich and I discussed on The McCarthy Report podcast, the settlement announcement, in the middle of jury selection under circumstances where the state is duty-bound to give Chauvin a fair trial, was blatantly prejudicial. It indicated that officials, having already fired Chauvin, have further concluded that he is guilty of murder, warranting the huge pay-out. The settlement could have been announced weeks ago, or, better, been delayed until after Chauvin’s trial. The timing is yet another illustration of bad faith from officials who have been stoking pretrial publicity for ten months.

It is understandable that Judge Peter Cahill does not want to delay the trial or grant a venue change. Frenzied publicity would attend this trial whenever it happens, regardless of the state’s good faith or lack of it. Moreover, it is not clear that moving the trial out of Hennepin County to someplace else in the Twin Cities — or, for that matter, someplace on Mars — would materially change things. The events and alleged police brutality surrounding Floyd’s death make this a story of intense national interest.

That said, I would have granted at least a brief continuance (probably holding the jurors already qualified in the selection process) to consider whether state officials should be held in contempt for interfering in jury selection and attempting to influence the jury pool. If Judge Cahill does not respond to the state’s shenanigans, they are bound to continue.

Woke progressives in Minnesota and across the country want Chauvin convicted of murder at all costs. They would portray even a manslaughter conviction — let alone an acquittal — as a racially motivated miscarriage of justice. Government officials also worry that if Chauvin is not convicted of murder, the rioting will be as bad as, or worse than, it was in the late spring and early summer of 2020. Judge Cahill needs to push back, reminding the state that no conviction of Chauvin would be safe on appeal unless the trial is a model of due process, and admonishing that the court is prepared to take action against state officials who undermine that goal.

Nevertheless, the judge was pleasantly surprised that only two of the jurors who had been qualified before the settlement was announced needed to be dismissed because of it (i.e., because they acknowledged that they’d be influenced by publicity about it). Those jurors were replaced in short order by others who convinced the court and the parties that they could decide the case impartially.

Given that the court and counsel have had to clear their calendars and the city has geared up security for an eight-week process (a four-week trial after nearly four weeks of jury selection), it would not have been an easy matter to postpone the trial. Doing so would probably also have necessitated postponing the second trial later this year, involving the three other former officers charged in the case.

Judge Cahill is thus pressing ahead. He has decided to keep four alternates, in addition to the required jury of twelve. Going into today’s session, 13 jurors had been selected, and another has since been added.

The Minneapolis court is following a different procedure than what I’ve previously described as the practice in many federal courts. In the latter, the judge customarily first qualifies the total number of jurors needed for the parties to be able to exercise their 16 peremptory challenges (ten for the defense, six for the prosecution) while ending up with twelve jurors and at least two alternates; then, the parties exercise their peremptory challenges. (A peremptory challenge is exercised at the party’s discretion against jurors who have satisfied the court that they can be fair; cause challenges are made whenever there is reason to think a juror cannot be fair, and if the court grants them, cause challenges do not count against the number of peremptory challenges that are permitted.)

Cahill, by contrast, is having the parties execute their peremptory challenges (under Minnesota law, five for the defense and three for the prosecution) as the selection process goes along and new jurors are qualified, rather than waiting to do the peremptories at the end. This procedure has the advantage of being faster — once you have the necessary number of jurors (16 here), you stop. It has the disadvantage, for the lawyers, that when they exercise a peremptory challenge, they don’t know if the next juror who is qualified will seem better or worse for their side.

Since only two more qualified jurors are needed to get to 16, the selection process could be completed today. Whether jury selection ends today or later in the week, opening statements are set to begin next Monday morning. As previously outlined here, Chauvin is charged with two counts of unintentional homicide: second-degree murder (a killing committed in the course of committing another felony — here, criminal assault) and third-degree murder (a killing caused by actions exhibiting depraved indifference to human life). He is also charged with a count of manslaughter, which is negligent homicide.

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