On May 4, Defendant Derek Chauvin submitted to the trial court a motion for a new trial and impeachment of the jury verdict. These matters are summarized below.[1]
Motion for New Trial [2]
This motion is based on Minnesota Rules of Criminal Procedure 26.04, subd. 1, which provides that the trail court may grant a new trial on the issue of guilt on any of the following grounds:
“(1)The interests of justice; (2) Irregularity in the proceedings, or any order or abuse of discretion that deprived the defendant of a fair trial; (3) Prosecutorial or jury misconduct; (4) Accident or surprise that could not have been prevented by ordinary prudence; (5) Newly discovered material evidence, which with reasonable diligence could not have been found and produced at the trial; (6) Errors of law at trial, and objected to at the time unless no objection is required by these rules; or (7) A verdict or finding of guilty that is not justified by the evidence, or is contrary to law.”
In support of this motion Chauvin alleges that:
- “(a) The court abused its discretion in denying Chauvin’s motion for a change of venue.
- (b) The court abused its discretion in denying Chauvin’s motion for a new trial on the ground that there was adverse publicity during the trial with respect to the defense’s expert witnesses.
- (c) The court abused its discretion in failing to sequester the jury for the duration of the trial.
- (d) The State committed pervasive, prejudicial prosecutorial misconduct. . . . including but not limited to: disparaging the Defense; improper vouching; and failing to adequately prepare its witnesses.
- (e) The court abused its discretion by failing to order Morries Hall to testify or, alternatively to admit into evidence Mr. Hall’s statement to law enforcement regarding his interactions with George Floyd and presence at the May 25, 2020 incident.
- (f) The court abused its discretion by submitting instructions to the jury that failed to accurately reflect the law with respect to second-degree unintentional murder, third-degree murder, and authorized use of force.
- (g) The court abused its discretion by permitting the State to present cumulative evidence with respect to use of force.
- (h) The court abused its discretion by ordering the State to lead witnesses on direct examination.
- (i) The court abused its discretion by failing to order that a record be made of the numerous sidebars that occurred during the trial.
- (j) The cumulative effect of the court’s multiple errors deprived Chauvin of a fair trial in violation of his constitutional rights.”
Motion for Impeachment of Verdict [3]
This motion is based on the Minnesota Supreme Court’s decision in the Schwartz case and Minn. R. Crim. Pro. 26.03, subd. 20(6). and the allegations that “that the jury committed misconduct, felt threatened or intimidated, felt race-based pressure during the proceedings, and/or failed to adhere to instructions during deliberations.”
Issues Regarding Juror Brandon Mitchell [4]
Mr. Mitchell, a Black man, in his written responses to the court’s questionnaire to prospective jurors, stated he had a “very favorable” opinion of Black Lives Matter (BLM). When questioned about this response in voir dire by defense counsel Erik Nelson, Mitchell said, “Black lives just want to be treated as equals and not killed or treated in an aggressive manner simply because they’re Black” and that “Black Lives Matter” was “simply a statement of fact that he supported.”
On the questionnaire Mitchell also stated he had a neutral opinion about “Blue Lives Matter” about police officers. When questioned in voir dire by Nelson, Mitchell said he knew some police officers at his gym and that they were “great guys.”
Mitchell on the questionnaire also said “no” to the question whether he or anyone close to him had “participated in protests about police use of force or police brutality.”
Another Mitchell statement on the questionnaire said he wanted to serve on the jury “because of all the protests and everything that has happened after the event [the Floyd killing], this is the most important case of my lifetime and I would love to be a part of it.” Nelson, therefore, asked, “How did the protests and things that have happened afterward have to do with . . the facts and evidence in this case?” Mr. Mitchell responded: “Well there’s no correlation between the protest and the facts. The facts are the facts. There’s no correlation between these two things.”
Thereafter Nelson obviously did not seek to strike Mitchell as a juror.
Recently it became known via social media that Mitchell had attended a large rally on August 28, 2020, in Washington, D.C. to commemorate the 57th anniversary of Martin Luther King’s famous “I Have a Dream” speech at the Lincoln Memorial. Some groups, including the NAACP, emphasized it was a way to recommit to King’s vision of racial equality while other groups tied ihe event to promote voter registration, police reform and justice for George Floyd.
The source of this information about Mitchell was a social media post containing a photo of him with two relatives in what appears to be a bar or restaurant the weekend of this event. He is wearing a T-shirt with an image of Dr. King, the logo “BLM” and “Get Your Knee Off Our Necks Commitment March.”
When questioned by journalists about this event, Mr. Mitchell said he attended because he had never been to Washington, D.C. and wanted to commemorate Dr. King. He also said he may have been given the t-shirt during the march, but does not specifically recall details.
Joseph Daly, a retired law professor at St. Paul’s Mitchell Hamline School of Law, thought Mr. Mitchell has been very forthright on a range of topics in his voire dire and that Nelson’s question about attending any anti-police rally was open to interpretation. Daly added, a prospective juror is “not going to confession. You just have to answer the questions you are asked.” Therefore, in Daly’s opinion, it was unlikely the court could find that Mitchell was lying on his response to that question.
Mary Moriarty, a former Chief Hennepin County Public Defender, thought Mitchell’s attendance at the event in Washington, D.C. did not make a difference. Given the evidence in the case, a court would be hard pressed to throw out the verdict. This view was shared by Melissa Murray, a law professor at New York University, who said although the attendance at the MLK event and the t-shirt were “not great, throwing out a jury verdict under these circumstances is probably a long shot.”
A similar opinion came from a New York criminal defense lawyer, Benjamin Brafman, who said, ”It’s been my experience that if you represent a really notorious individual in a trial that’s been watched by the entire world, you would have to have a really powerful confluence of legal issues for any appellate court to give it traction.”
Another Minnesota criminal defense attorney, Mike Padden, had a different view. He thought Mitchell in the voir dire should have disclosed his attendance at the MLK event and let the judge and the attorneys decide whether he should be on the jury.
Apparently the relevant legal precedent for this issue held that for a party to get a new trial, the party must show that the juror’s response on voir dire to a material question was dishonest and a correct response would have provided a valid basis for removal of the juror. (McDonough Poser Equip. v. Greenwood, 464U.S. 548 (1984).) https://www.washingtonpost.com/national/explainer-will-jurors-march-presence-impact-chauvin-case/2021/05/05/f2f70e84-addd-11eb-82c1-896aca955bb9_story.html
State’s Response to the Motions [5]
Chauvin’s four-page motion document asked for additional time to prepare and submit a thorough brief on these issues, and the State’s has not yet submit its detailed response to these motions. However, a spokesman for the Minnesota Attorney General’s Office stated, “The court has already rejected many of these arguments and the State will vigorously oppose them.”
Conclusion
The press reports about these defense motions, cited in footnote 1, contain the following opinions about the likely success of these motions .
Mike Brandt, a Minneapolis criminal defense attorney, said these requests are routine following a guilty verdict and often predict issues that will be raised on appeal, but that the convictions are unlikely to be overturned.
The previously mentioned Mary Moriarty said there wasn’t much new in the defense motion and that it lacked specificity. “You can see it’s very rushed and they actually asked for additional time to brief the issues.
It should also be noted that before or at the sentencing hearing in late June, the court has to rule on the prosecution’s pending motion for enhanced sentencing because of alleged aggravating circumstances. [6]
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[1] Defendant’s Notice of Motions and Post-Verdict Motions, State v. Chauvin, Court File No. 27-CR-20-12646 (Henn. Cty. Dist. Ct. May 4, 2021); Walsh, Derek Chauvin files for new trial, alleging prosecutorial and judicial misconduct, StarTribune (May 4, 2021); Xiong & Walsh, Chauvin files for new trial, alleging prosecutorial misconduct and judicial errors, StarTribune (May 5, 2021); Forliti (AP), Chauvin’s lawyer seeks new trial, hearing to impeach verdict, Wash. Post (May 4, 2021); Barrett & Winter, Derek Chauvin Seeks New Trial in George Floyd Case, W.S.J. (May 4, 2021); Eligon, Derek Chauvin’s Lawyer Asks for New Trial After Jury Verdict, N.Y. Times (May 4, 2021); Bailey, Derek Chauvin’s attorney files motion for a new trial, alleging misconduct by judge, prosecution and jurors, Wash. Post (May 4, 2021); Forliti (AP), EXPLAINER: Will juror’s march presence impact Chauvin case, Wash. Post (May 5, 2021). Details about the court’s previous rulings on these issues may be found in List of Posts to dwkcommentaries—Topical: George Floyd Killing.
[2] See n.1 supra; Minn. R. Crim. Pro. 26-04, subd. 1.
[3] See n. 1 supra; Minn. R. Crim. Pro. 26.03, subd. 20(6); Schwartz v. Minneapolis Suburban Bus Co., 104 N.W.2d 301 (Minn. Sup Ct. 1960).
[4] Forliti & Glass (AP), Chauvin juror: After intense trial, verdict was ‘easy part,’ StarTribune (April 28, 2021); Xiong, Chauvin juror hopes experience will lead to change, inspire others, StarTribune (April 28, 2021); AP, Juror talks of deliberations before finding Chauvin guilty, StarTribune (April 28, 2021); Beliware, First Chauvin juror to speak publicly recounts stress of coming to court to ‘watch a Black man die,’ Wash. Post (April 28, 2021);Xiong, Juror defends participation in March on Washington after social media post surfaces, StarTribune (May 4, 2021).
[5] See n. 1 supra.
[6] Xiong & Olson, Attorneys debate ‘aggravating factors ‘ in George Floyd murder, StarTribune (April 30, 2021); Forliti (AP), Prosecutors seek higher sentence for Chauvin in Floyd death, StarTribune (April 30, 2021); Bila, Chauvin’s ‘particular cruelty’ to George Floyd should mean harsher sentence, Minnesota attorney general argues, Wash. Post (May 1, 2021); AP, Chauvin sentencing in Floyd death pushed back to June 25, Wash. Post (April 27, 2021); State’s Memorandum of Law in Support of Blakely Aggregated Sentencing Factors, State v. Chauvin Henn. County Dist. Ct. No. 27-CR-20-12646 (April 30, 2021),; Defendant’s Memorandum of Law in Opposition to Upward Durational Sentencing Departure, State v. Chauvin Henn. County Dist. Ct. No. 27-CR-20-12646 (April 30, 2021).