Chauvin’s Appeal Groundwork is Set With Verdict Yet to Come

(Bloomberg Law) -- The groundwork for appealing a possible conviction of Derek Chauvin, the former Minneapolis police officer accused of killing George Floyd, has been laid even before jurors weigh the charges.

Shocking lawyers on both sides, the city of Minneapolis announced a record $27 million civil settlement with Floyd’s family just as jury selection was getting under way. After another Black man, Daunte Wright, was fatally shot by police in a city suburb during the trial, the judge elected not to sequester jurors or ask them whether the incident and resulting protests would affect their ability to be impartial.

And from the outset, video of Floyd’s death that sparked nationwide protests and the Black Lives Matter movement created an environment in which “everyone pretty much became captivated by watching this man die,” as Randy Shrewsberry, founder and executive director of the Institute for Criminal Justice Training Reform, put it.

All that may be enough for Eric Nelson, Chauvin’s attorney, to argue the jury was unduly swayed by outside events.

“The defense has really been positioning Chauvin’s case for an appeal from day one,” said Christa J. Groshek, a former public defender and owner and managing attorney of Groshek Law PA in Minneapolis. “I think there are a tremendous amount of options they will have on appeal.”

Closing arguments are scheduled to begin Monday, after which jurors will deliberate Chauvin’s fate. The former officer is charged with second-degree murder, third-degree murder and manslaughter, all of which have different standards of proof.

Chauvin was filmed May 25, 2020, kneeling on Floyd’s neck for more than nine minutes as bystanders shouted at officers and pleaded to let him up. Floyd’s death unleashed waves of violent unrest throughout Minneapolis and across the country as protesters demanded Chauvin and the other officers on the scene be held criminally responsible.

A successful appeal, if Chauvin is convicted of any of the charges, would mean Minneapolis would have to go through a new trial with a new jury.

Unpredictable Juries

The prosecution’s case has leaned on the testimony of Chauvin’s fellow officers, particularly Minneapolis Police Chief Medaria Arradondo, in a rare breach of the so-called blue wall of silence.

Over two weeks of testimony, prosecutors methodically recreated Floyd’s death from footage taken from officers’ bodycams and video shot by bystanders. Nelson repeatedly asked jurors to consider the totality of the circumstances rather than focus on the video.

The jury will also have to sort out dueling expert witnesses who offered different conclusions about what caused Floyd’s death — whether it was Chauvin kneeling on Floyd’s neck, or underlying issues including Floyd’s drug use, health conditions, and even carbon monoxide exhaust from nearby vehicles.

“Jurors can be unpredictable,” Shrewsberry said. “By default, they tend to give police the benefit of the doubt.”

Two jurors were dismissed prior to the trial’s start after they admitted news of the civil settlement with Floyd’s family affected their perception of the case. Judge Peter Cahill was frustrated at the city’s decision to announce the settlement right before the criminal trial began, but after re-interviewing the jurors he was satisfied they could be impartial.

The defense will be able to argue that “anyone aware of that settlement (which is likely everybody) would believe that the city made its own determination that Chauvin was clearly responsible for the death of George Floyd,” Julie Rendelman, a defense attorney in New York, said in an email.

“Further, the defense would argue that the constant protests outside the courtroom along with the publicity surrounding the recent Daunte Wright case (which the judge refused to question the jurors about) made it impossible for the jury to make a decision based solely on the evidence in the courtroom.”

Sequestration Ruling

From the outset, Nelson sought to have the jury sequestered to prevent exposure to news like the civil settlement and Wright’s death that could prejudice jurors against Chauvin.

Nelson again asked that the jurors be sequestered after Wright’s death set off another wave of social justice protests. However, Cahill said sequestering the jury at that point could signal they should be worried about their safety, which could affect their view of the case.

“On appeal, whether the judge will buy it or not, I would be pretty shocked if that wasn’t raised,” Shrewsberry said. “And I think that’s with some merit as well. Because how couldn’t that have some influence?”

Protests in Brooklyn Center over Wright’s shooting continued for a sixth night with around 100 arrests on Friday, according to news reports. Brooklyn Center enacted a citywide curfew of 11 p.m. on Friday to 6 a.m. Saturday in response to the unrest.

Chauvin’s attorneys have already been talking about the Wright shooting and resulting protests in the community, said Ted Sampsell-Jones, a law professor at Mitchell Hamline School of Law.

“All these things about, you know, the Minneapolis City Council press conference, the riots last night. I mean, Chauvin’s attorney raised that again this morning,” Sampsell-Jones said on a Bloomberg Law podcast.

While expressing doubt that the arguments will ultimately work, Sampsell-Jones said “all of those things are aimed at showing that this was a biased jury.”

Perfection Not the Standard

Tamika McKoy, a criminal defense attorney and former prosecutor in New Jersey and Pennsylvania who also does legal analysis for ABC News, said prosecutors may have also provided some grounds for appeal by challenging a pathologist who testified for the defense to draw legal conclusions about Chauvin’s actions.

Cahill threatened to declare a mistrial on the final day of arguments if the prosecution strayed from the very narrow line of questioning he allowed after the state sought to introduce new evidence on the cause of Floyd’s death.

“When you have an expert, you have to be very careful in not having that expert answering the question the jury will ultimately have to answer,” she said. “A couple of times they went one question beyond as to inquire as to that ultimate question.”

Chauvin’s trial is only the first test for prosecutors seeking to hold police accountable for recent deaths. Three other officers on the scene when Floyd died are charged with aiding and abetting murder and manslaughter and will be tried later. Brooklyn Center, Minn., police officer Kimberly Potter, who shot and killed Wright, was charged with manslaughter in the middle of Chauvin’s trial.

Despite the legal and social ramifications hanging on the outcome, LeRoy Pernell, professor of law at Florida Agricultural and Mechanical University, predicted appeals courts would give Cahill a wide berth on his rulings tied to the civil settlement and not sequestering the jury.

“Even if someone wants to second guess the judge on this, you’re going to have to show some level of prejudice. Somehow that prejudice is more than just harmless error,” he said.

“A defendant is not entitled to a perfect trial,” he said. “Just a fair one.”

(Updates with overnight protests in 19th paragraph)

To contact the reporters on this story: Ian Lopez in Washington at ilopez@bloomberglaw.com; Maya Earls in Washington at mearls@bloomberglaw.com

To contact the editors responsible for this story: Andrew Childers at achilders@bloomberglaw.com; Bernie Kohn at bkohn@bloomberglaw.com

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