Two weeks after being convicted of murder, the former Minneapolis police officer is accusing jurors of misconduct.
MINNEAPOLIS (CN) — Derek Chauvin’s defense attorney has moved for a new trial, alleging a bevy of errors in the former Minneapolis police officer’s murder conviction for the killing of George Floyd.
Defense attorney Eric Nelson filed a motion Tuesday afternoon alleging prosecutorial and jury misconduct along with errors on the part of Hennepin County Judge Peter Cahill and “a verdict that is contrary to law.”
Nelson sought to rehash several issues discussed at trial, including Cahill’s denial of his request for a change of venue, a pre-verdict motion for a new trial on the basis that publicity during the trial tainted the proceedings, allegations of prosecutorial misconduct and the decision not to order testimony from Floyd’s friend Morries Hall, who invoked his Fifth Amendment right to avoid testifying.
Discussions of publicity took up the bulk of the motion. Chauvin’s trial was the first trial broadcast live in Minnesota’s history, and was covered heavily by national and international media. Floyd’s death also sparked protests and riots in the early summer of 2020, and protests continued throughout the trial around the Hennepin County Courthouse and, after the mid-trial police killing of Daunte Wright, the nearby Brooklyn Center Police Department.
“Such publicity included post-testimony, but predeliberation, intimidation of the defense’s expert witnesses, from which the jury was not insulated. Not only did such acts escalate the potential for prejudice in these proceedings, they may result in a far-reaching chilling effect on defendants’ ability to procure expert witness—especially in high-profile cases, such as those of Mr. Chauvin’s codefendants—to testify on their behalf,” Nelson wrote in the motion.
He added, “The publicity here was so pervasive and so prejudicial before and during this trial that it amounted to a structural defect in the proceedings.”
At four pages, Nelson’s motion was sparse on details. He is asking for extra time from Cahill to file a brief explaining his arguments more fully.
A spokesman for Attorney General Keith Ellison’s office, which prosecuted the case, was brief in dismissing Nelson’s arguments. “The court has already rejected many of these arguments and the State will vigorously oppose them,” Deputy Cheif of Staff John Stiles said.
Rachel Moran, a professor at the University of St. Thomas’ law school in Minneapolis, said such motions are standard practice in Minnesota after every conviction and that its timing one day before the deadline was probably not connected to a social media furor over pictures of juror Brandon Mitchell at last summer’s March on Washington.
Mitchell is the only juror who deliberated in Chauvin’s trial who has come forward publicly. After he first did so last week, a picture of Mitchell and two cousins surfaced on social media from an event Mitchell said was to commemorate the 57th anniversary of Dr. Martin Luther King’s “I Have A Dream” speech. Mitchell is shown wearing a Black Lives Matter shirt and hat, with King’s face and the words “Get Your Knee Off Our Necks” on the shirt.
Mitchell said that the event was not focused on Floyd. On a juror questionnaire he filled out as part of jury selection, he responded “no” to two questions: “Did you, or someone close to you, participate in any of the demonstrations or marches against police brutality that took place in Minneapolis after George Floyd’s death?” and “other than what you have already described above, have you, or anyone close to you, participated in protests about police use of force or police brutality?”
Moran said that Mitchell’s attendance at the march could give Nelson a strong enough argument for juror misconduct for Cahill to call a hearing, but she otherwise didn’t see much of merit in the motion.
“The little mini-furor that has erupted is, did the juror lie when he said he hadn’t participated in protests around Mr. Floyd’s death?” she said. “This probably doesn’t amount to misconduct, because the march on Washington was a large event, it was meant to commemorate Dr. King … I think you could go either way as to whether he should have checked the box on that.”
“Nelson is requesting a hearing, and Cahill might grant him one,” Moran said. “I don’t think it rises to the level of misconduct, but it could be a close enough call that the judge wants a hearing.”
University of Minnesota law professor and former Hennepin County Public Defender Mary Moriarty said that Nelson’s motion had a long way to go if he wanted to meet the threshold for a Schwartz hearing, in which jurors are examined on possible misconduct. “You need specifics, and I’m kind of surprised they don’t have the specifics here about some of these things,” she said. “There’s no basis for the judge to grant a Schwartz hearing at this point given what’s in this motion.”
Moriarty added that Nelson’s objective could be to simply get Mitchell’s comments and attendance into the record for the purposes of appeal. She also noted that the most specific allegation regarding juror misconduct involved failure to follow instructions, which she said didn’t seem to be involved in Mitchell’s comments.
Still, she said, Cahill would likely grant Nelson’s request for more time. “Cahill’s been trying to avoid appellate errors, and giving them more time to develop their issues for appeal probably makes sense,” he said. “It’s not as though he has to continue the sentencing.”
Moran gave little credence to Nelson’s arguments of prosecutorial misconduct and publicity, saying that they’d been hashed out already and were likely meant to create a record for appeal. She said that one new argument, alleging that the defense had trouble getting expert witnesses because of the trial’s high profile, would take some shoring up.
“If he has a lot of proof of that, maybe it would go somewhere,” Moran said. “But if he just has people who declined to testify without proof that it was from fear of publicity — I don’t think that’s a meritorious claim.”
Chauvin, 45, was convicted April 20 of second- and third-degree murder and second-degree manslaughter for Floyd’s May 25, 2020 death. Chauvin, a white man, was shown in a viral video kneeling on Floyd’s neck for several minutes — later tabulated by the state as 9 minutes and 29 seconds — while Floyd, a Black man, gasped for breath and pleaded for his mother.
The graphic video, shown dozens of times at Chauvin’s trial, sparked protests in the Twin Cities and around the world after 17-year-old Darnella Frazier first posted it. Chauvin is the first white officer to be convicted of murder for killing a Black man on duty in Minnesota’s history, and only the second Minnesotan officer ever convicted of murder for an on-duty killing. The first, Minneapolis police officer Mohamed Noor, was convicted of third-degree murder in 2019 for the shooting of a white Australian national, Justine Ruszczyk Damond.
Three other officers who participated in Floyd’s arrest face aiding-and-abetting charges. Those officers — Tou Thao, J. Alexander Kueng and Thomas Lane — are set to go to trial in August. Chauvin’s sentencing is scheduled for June.