As Minneapolis prepares for its most anticipated murder trial in recent memory, the charges and discovery issues remain unresolved.
MINNEAPOLIS (CN) — Just over nine months after video of Minneapolis police officer Derek Chauvin kneeling on George Floyd’s neck sparked protests and riots around the globe, jury selection for Chauvin’s murder trial is scheduled to begin Monday.
It promises to be one of the highest-profile trials in Minnesota history, and has become a showcase for several criminal-law questions and a battleground for police-accountability activists even as it places the cities of Minneapolis and St. Paul on high alert for a repeat of last summer’s riots.
The trial itself is estimated to start near the end of the month after a jury is seated. Chauvin will stand trial alone after a hotly contested severance of his case from that of the three other officers involved in Floyd’s deadly May 25 arrest. Hennepin County Judge Peter Cahill originally joined the cases against Tou Thao, Thomas Lane and J. Alexander Kueng with Chauvin’s in November, but decided in January that concerns about Covid-19 transmission in the courtroom were reason enough to split the trials again.
The severance order was a backfire for prosecutors, who had advocated for a delay of all four cases after news of new coronavirus vaccines broke but not for a reversal of the hard-won joinder. They sought to challenge Cahill’s split, but the Minnesota Court of Appeals rejected their petition.
The split may be settled, but little else is. University of Minnesota criminal law professor Richard Frase pointed to several factors that could still impact the cases before Chauvin goes on trial.
“One of the things I’m looking for first is, what’s going to happen to the third-degree murder charge?” Frase said.
Chauvin was originally charged with third-degree murder upon his arrest in May, but Cahill dismissed the charge in October, citing a longstanding Minnesota Supreme Court holding that requires a third-degree murder defendant to have taken actions that were dangerous to people other than the victim to be found guilty.
That standard now faces a challenge, and the charge is back on the table. Last month, the Minnesota Court of Appeals upheld the third-degree murder conviction of Mohamed Noor, another former Minneapolis police officer, in an opinion that called the Supreme Court’s reading of the third-degree statute into question.
Prosecutors quickly moved to reinstate the third-degree charge against Chauvin and add charges against the other defendants, but Cahill denied that motion, saying that he disagreed with and was not yet bound by the appeals court’s decision, especially since an appeal to the Supreme Court was on its way.
Noor’s attorney Thomas Plunkett, who also represents Kueng, has indeed appealed the Court of Appeals’ decision, and the Supreme Court granted his petition March 1. Arguments in that case are planned for June.
In the meantime, the Court of Appeals has already heard an appeal by prosecutors in the Chauvin case of Cahill’s order declining to reinstate the third-degree charges. Celebrity attorney Neal Katyal, arguing for the prosecution, told a three-judge panel on Monday that their colleagues’ precedent should hold sway unless and until the higher court says otherwise.
“Without action from this court, a landmark criminal case, one of the most important in our nation’s history, will take place with a major part of the case — third-degree murder — missing. Nowhere in it whatsoever,” Katyal said, according to the Associated Press. “That can’t possibly be the law.”
Chauvin’s attorney Eric Nelson countered that a reversal would hamper his client’s case and impede his right to a fair trial. He pointed out that Chauvin could be forced to pursue further appeals from prison should he be convicted and the Noor ruling overturned, and said Chauvin’s team had been preparing a defense for second-degree murder for months on the assumption that a third-degree charge was out of the way.
Late Friday morning, the Court of Appeals ruled that its Noor opinion was binding as of the date it was filed, and reversed Cahill’s denial of the state’s motion to reinstate the third-degree charge. It stopped short of ordering that the charge be reinstated, so that question is still up in the air.
Minnesota Attorney General Keith Ellison applauded the ruling.
“We believe the charge of third-degree murder, in addition to manslaughter and felony murder, reflects the gravity of the allegations against Mr. Chauvin,” he said in a statement. “Adding this charge is an important step forward in the path toward justice. We look forward to presenting all charges to the jury in Hennepin County.”
Frase speculated that the addition of a third-degree charge to the existing second-degree murder and manslaughter charges against Chauvin could lead to delay or even to a plea agreement. He said neither is likely, but either is possible. A recent leak to the New York Times revealed that Chauvin was preparing to plead guilty to third-degree murder shortly after his arrest before then-U.S. Attorney General William Barr nixed the talks.
That leak led to the latest in a long line of defense calls for sanctions against Ellison and his office. Attorney Robert Paule, defending Thao, argued in a Feb. 15 motion that the case against his client should be dismissed because of the prejudicial nature of the leak, which he blamed on the attorney general’s office.
Delays in turnover of discovery have also led to a series of demands for sanctions, none of which Cahill has granted so far. On Thursday, prosecutors also raised a discovery dispute, pushing against the inclusion of an expert report from the New-York based Forensic Panel, which they argued included inadmissible hearsay.
With discovery issues unresolved, jury selection comes with its own complications. The jury will be sequestered and anonymized, per a Nov. 4 order from Cahill. The proceedings, however, will be livestreamed – a first in Minnesota’s history.
The 12 jurors and four alternates will not be visible on the video feed, and most media outlets will be forced to report from outside the courtroom in the nearby Thrivent Financial building, purchased by Hennepin County in 2018 for county offices. The entire area surrounding the Hennepin County Government Center has been heavily barricaded in anticipation of widespread protests, with razor wire and concrete blocks dotting the streets around the building.
The lengthy jury-selection process, Frase said, is unusual and will likely be a slog.
“The judge has allowed a long time for jury selection here. My impression is that three weeks for jury selection is a pretty long time, and maybe that’s because it will be a little harder to get 12 jurors and a set of alternate jurors,” he said.
That’s a sentiment that’s been echoed throughout the case. Attorneys for all four defendants advocated early on for a change of venue, arguing that it would be impossible to empanel a jury with no knowledge of the case. Cahill denied their motions, pointing out that the same would likely be true anywhere in the state.
Once selection begins, Frase said, so does case-building. He said attorneys’ questions to the jury will be their first chance to lay out their theories of the case. The most critical piece of those theories will be the question of what caused Floyd’s death.
“I’m going to be interested to see how the defense attorney attacks the issue of causation– how they use the expert testimony, what kind of expert opinions are brought in on both sides,” he said.
He pointed out that while prosecutors have a high burden to prove Chauvin caused Floyd’s death beyond reasonable doubt, factors like drugs and pre-existing conditions didn’t prevent that.
“Chauvin can still be the legal cause of Floyd’s death, even if there were other contributing causes, such as Floyd’s heart, circulatory conditions, or use of drugs,” Frase said.
Besides that issue, there remains the question of whether Chauvin’s use of force against Floyd was justified. While the hold prosecutors say Chauvin placed on Floyd’s neck for nine minutes is unlikely to qualify as deadly force, Frase said, jurors may find that it wasn’t reasonable, even if the hold was in Minneapolis training manuals at the time. It’s since been outlawed in Minnesota and a bill banning chokeholds nationwide passed the House late Wednesday.
Frase also said the exact time of Floyd’s death could create complications.
“We don’t know exactly when Floyd died, so that’s another issue when it comes to causation. He was pronounced dead about an hour after he left the scene, but it’s conceivable that he died while still on the scene,” he said.
If that’s the case, he added, it could increase the scrutiny on all four officers, since Kueng and Lane both commented on Floyd’s worsening condition in body camera videos. Those comments will likely draw the state’s attention.
“On the use of force, I think the state is going to say, ‘you have to show that your use of force was justified all the time you were using it,’” he said.
Jury selection begins early Monday morning, and the trial is expected to last through most of March.