Posted on March 19, 2021 by Scott Johnson in Law, Media, Minnesota, Policing

Chauvin trial jury selection day 9

If the day didn’t exactly begin with a whimper, it ended with a cathartic bang of a sort. Stick with me here. In between the whimper and the bang three more jurors were seated, bringing the total to 12 so far. We should have 14 soon and adjourn until opening statements on March 29.

Before jury selection resumed Jerry Blackwell — one of the several outside attorneys contributing his services to the prosecution — argued in favor of the exclusion of evidence of George Floyd’s May 2019 arrest by the Minneapolis police. The issue is one of legal relevance. Late yesterday afternoon the state filed this memorandum of law on the issue. (It also filed this memorandum of law opposing continuance of the case on account of pretrial publicity.)

Judge Peter Cahill will announce his rulings orally on these motions and on the change of venue motion at 8:15 this morning. Jury selection should resume at 9:00. I anticipate that he will deny the motions for a continuance and change of venue. He has already ruled against the admission of evidence of the May 2019 arrest. If he changes his mind on that, my reading is that he will admit the evidence only for limited purposes.

Blackwell’s argument Thursday morning was focused on the expert medical testimony of one Dr. Vincent. A video clip of Blackwell’s argument is posted here.

The prosecution seeks to introduce Vincent’s expert testimony on how “a human being” in Floyd’s circumstances at the time of his arrest in May 2020 would react. They want to show that Floyd was reacting normally. I think this is a weak argument. I have in my notes that “this argument is a crock.” If granted — as Judge Cahill commented — it opens the door to Floyd’s behavior in the May 2019 arrest. We shall see.

After a short break jury selection resumed with juror number 86. We don’t get racial or ethnic data on jurors who are not selected, but I detected a pretty thick Chinese (I think) accent. Although she has avoided the news, she had learned of the settlement of the civil litigation. She conceded that, based on what she knew, she leaned toward the prosecution. Judge Cahill excused her for cause before turning her over to the lawyers for voir dire.

The prospective jurors, I should add, have been asked by the court to avoid the news since they were summoned to jury duty this past December or so. Everyone understands, however, that news of the case is to some extent unavoidable. It is one of the basic fair trial challenges that permeates the case.

Juror number 87 was not equally current on the news. She is a soft-spoken mother of five who had not seen video of the arrest and professed neutrality toward the parties. Although defense counsel Eric Nelson took his time with her, I guessed that her evident fairness toward the parties would elicit a peremptory strike by Steve Schleicher — another of the outside attorneys contributing his services to the prosecution. I have in my notes on Schleicher’s voir dire that she would be an ideal juror — an ideal juror, period.

Schleicher asked about her son’s attendance at one of the protests following Floyd’s death. It turns out that her son was at the protest on Highway 35W in Minneapolis that narrowly avoided catastrophe when the truck driver slammed on the brakes. George Floyd’s death has touched a lot of people in the Twin Cities one way or another. She didn’t know about her son’s attendance at the protest until afterwards and only expressed concern for his safety. As anticipated, Schleicher exercised a peremptory challenge to strike her. (The state has four strikes remaining.)

Given the prospective concerns about their safety, Judge Cahill indicated that he intended to authorize identification of the jurors only when he deemed it safe to do so. Nelson, who regularly inquires on the issue of juror concerns about personal safety, now incorporates this assurance into his voir dire. It wouldn’t do much for me, but there you have another aspect of the fundamental fair trial challenge in this case.

We need not linger long over juror number 88, He heard about the settlement of the civil litigation. His initial reaction was shock. Judge Cahill examined the juror with the audio off and excused him for cause as a result of his acquaintance with a key witness in the case.

Juror number 89 had also been exposed to the settlement. In her case, even though she is trying to avoid the news, she heard of it through a passing mention on the radio. She knew the amount was $27 million. She stated that the settlement didn’t affect her view of the criminal case.

She is an experienced nurse who lives alone in the first-ring Minneapolis suburb Edina. She expressed ambivalence about being summoned to jury service in this “big case.” It portends “a lot of repercussions.” She is concerned about her safety following the trial, but reassured by the security in the courthouse and the anonymity afforded the jurors. It “kind of” makes her feel better. She is no dummy; she is unsure how comfortable she is with the prospect of her name being out there somewhere down the road.

Her juror questionnaire provides a narrative of the facts of the May 25 arrest up to Floyd’s death that is probably based on television news. She holds neutral opinions of both Floyd and Chauvin. She seemed to think that Chauvin kept his knee on Floyd’s neck too long “knowing he died.” She is unsure of the cause of death. She does not distrust the police. Passed for cause by the parties, she is the tenth juror seated in the case. We were then advised by the court that she is a white woman in her 50’s.

Juror number 90 is a classic Hennepin County juror. He is an IT administrator of firm leftist views with an extremely negative opinion of Chauvin. He is sane enough to fear for his personal safety if he were to sit as a juror and render a verdict of not guilty, but he doesn’t need to worry. His views of the police are so hostile that he was excused for cause. This guy could be the grating voice of the Minnesota DFL. His assessment of the safety issues inherent in the case is skewed by lunacy. He is a lunatic living in a left-wing fantasy world.

The controlling Minnesota case — the Logan case — provides that jurors with a clear showing of partiality for police testimony are to be excused for cause. Judge Cahill concisely excused juror number 90 for cause as “a reverse Logan.”

Juror number 91 is also aware of the $27 million wrongful death settlement. An older lady who worked in marketing for a financial company, 25-30 years ago she lived in the neighborhood where the incident occurred. She doesn’t return to the neighborhood or even come much to Minneapolis. She said she hasn’t been downtown in years. I chalk up her good attitude to avoidance of the city.

She enjoys “taking care of her family.” She has “a couple grandchildren.” Her son-in-law is a physician.

She is excited to have the opportunity to serve as a juror in the case. She was proud to fill out the questionnaire. She seldom watches the news and has only seen the video once, for four or five minutes, before she shut it off. She expressed neutral views of George Floyd and Derek Chauvin. She knows there are two sides to every story. “I only know the surface,” she said, and thought more information would be helpful before she makes up her mind.

She grew up in south Minneapolis, where the incident occurred. She lamented the many stores that were looted and destroyed. She has a relative who is a police officer. She isn’t close with him, but she is proud of him for standing up as a police officer. Asked on the questionnaire about her view of Black Lives Matter, her response was: “I am black and my life matters.” She expressed no view of the organization.

I view juror number 91 as a good citizen. Her degree is in child psychology. She occasionally volunteers with a youth organization to help kids with their homework. I have her down as about as good as it gets for the defense. She is the eleventh juror seated. According to the court, she is a black woman in her 60’s.

At this point the court took an afternoon break. When court convened again following the break, Eric Nelson noted that city officials were publicly holding forth about the settlement of the civil litigation again (video below). He cited Mayor Frey’s comments yesterday in further support of his change of venue motion. I didn’t know at the time — and I doubt Nelson did either — that the comments of both both Frey and City Attorney Jim Rowader at the press conference, about the settlement’s lack of impact on the Chauvin case — were bald falsehoods, as one reporter had the temerity to point out.

Although she stated it had no effect on her view of the case, juror number 92 was also aware of the $27 million settlement. She is family-oriented and loves her work in the business of commercial insurance. She has some concern about “what would happen to [her] afterwards” if she were to serve as juror. She would be okay with the release of her name at a later date.

She has seen a clip of the video. She holds “somewhat negative” views of both Floyd and Chauvin. The media have painted Chauvin as “an aggressive cop with tax problems.” She is aware that “George Floyd’s record wasn’t clean” and that “he abused drugs at some point.” Her opinion is that the police used excessive force but that Floyd was not completely innocent.

By contrast with juror number 91, juror number 92 is not a classic Hennepin County juror. She “strongly disagrees” with defunding the police. She sees both positive and negative effects to have followed on Floyd’s death. “We need law enforcement,” she said. Why? “Look at the riots.” She was the twelfth juror seated.

Juror 95 gets his news from NPR. That was enough for me, but Nelson continued with him. He knows of the settlement. He was shocked by it — he didn’t expect the civil case to be settled until the criminal cases are concluded. Although he thinks he can still be impartial, the settlement altered his view of the case. It is hard to get out of his mind. At about this point I figured out that he spoke with an Indian accent.

Probing his concerns over his own and his family’s safety whatever the verdict, Nelson ascertained that he could not focus on the evidence in the case. Those safety concerns would weigh on his mind. Judge Cahill excused him for cause.

Schleicher then rose to offer a transcript of Frey’s press conference and to chide Nelson for citing the press conference without a formal affidavit for the record. This set Judge Cahill off. Setting Schleicher back on his heels, Judge Cahill noted the disparity between the prosecution team and the defense. How many attorneys have been admitted for the prosecution pro hac vice so far, he asked. Ten or 12? Schleicher professed not to know, but added the irrelevant point that Nelson’s fees were paid by the police union. That is a surprising lack of professionalism on Schleicher’s part.

I invoked Paul Newman’s adversaries in The Verdict to make a point about the disparity between the prosecution and defense teams in part 4 of this series. It was good to see Judge Cahill unload it on Schleicher.

The next two jurors selected will serve as alternates. Here is the court’s summary of the 12 jurors seated so far:

· No. 2: white male; 20s
· No. 9: multi/mixed-race woman; 20s
· No. 19: white male; 30s
· No. 27: black male; 30s
· No. 44: white woman; 50s
· No. 52: black male; 30s
· No. 55: white woman; 50s
· No. 79: black male; 40s
· No. 85: multi/mixed-race woman; 40s
· No. 89: white woman; 50s
· No. 91: black woman; 60s
· No. 92: white woman; 40s.

I should have reported yesterday that the parties agreed to strike prospective jurors 108, 112, 122, 124, and 125 for cause.

Thanks to my friends at Alpha News (I sit on the board) for clipping the video in the tweets above.

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