Venue and the mob

Is it possible for any of the four former Minneapolis police officers charged in the death of George Floyd to receive a fair trial? In Minneapolis? If not in Minneapolis, anywhere else in Minnesota? Is it possible that a Hennepin County jury won’t have the secondary effects of not guilty verdicts in mind when they retire to deliberate?

I’ve had those questions in mind since expedited criminal charges were filed following the arsons and riots that convulsed the Twin Cities following Floyd’s death this past May 25. In widely reported statements public officials including Minnesota Governor Tim Walz and Attorney General Keith Ellison repeatedly declared the officers guilty of murder. Minneapolis Mayor Jacob Frey declared on May 27: “I’ve wrestled with, more than anything else over the last 36 hours, one fundamental question: Why is the man who killed George Floyd not in jail?” We are deep into a verdict first, trial later mode.

Minnesota Attorney General Keith Ellison is not the man for the prosecutor’s job, but — bowing to the demands of the mob — he is the man whom Governor Walz asked to undertake it. Ellison made his name around town leading crowds chanting support for the (subsequently convicted) defendants charged in 1992 with the cold-blooded murder of Officer Jerry Haaf.

Having teamed up with former Vice Lords gangbanger Sharif Willis, himself a suspect in Haaf’s murder — the murder had been planned at Willis’s house — Ellison led crowds in a chant of “We don’t get no justice, you don’t get no peace.” In the context of Haaf’s murder, it was a credible threat. I wrote about Ellison’s unlikely background for the job of attorney general in the Weekly Standard column “Can Keith Ellison turn lawman?”

Ellison himself has no experience as a prosecutor. He has assigned Assistant Attorney General Matthew Frank and others to try the cases brought against the four former Minneapolis police officers charged with responsibility for Floyd’s death. Frank is the lead lawyer from Ellison’s office prosecuting the cases.

The four cases have been assigned to Hennepin County District Judge Pete Cahill for trial. This past September Judge Cahill held a hearing on pending motions that went on for some three-and-a-half hours. Cahill took up defendants’ motion for change of venue at the hearing.

Defendant Tou Thao filed a memorandum of law in support of the change of venue motion. It is posted online here. After setting forth the governing law, the memo urged the court to adopt a new standard for change of venue. I inferred from the memo that the governing law didn’t strongly favor the change of venue motion.

The law of venue seeks to protect a defendant’s right to an impartial jury. Pretrial publicity is the concern addressed in applicable venue law. Judge Cahill reportedly commented that the problem of pretrial publicity was inescapable in the four cases. The problem, however, isn’t just pretrial publicity.

At the hearing Thao’s attorney cited his concern that Minneapolis residents fear the impact their verdict would have considering the then recent “lawlessness.”

“If I lived in Moorhead I wouldn’t worry about the streets of Moorhead being burned” after a trial, Thao’s attorney argued. I would. I would worry about Moorhead, or Rochester, or Duluth, or St. Cloud, or Rochester. Wherever in the state the trial or trials are held, the mob will follow. Everyone knows it.

One is left — I am left — with the thought that the judicial system is ill equipped to deal with cases holding the venue hostage to the jury’s verdict. In any event, Judge Cahill denied the change of venue motion in a “preliminary order” and memorandum dated November 5, 2020.

The charges against the officers proceed in an atmosphere of mob justice. Perhaps Ellison is the man for the job after all. As I wrote in my preview of the trial yesterday, we are one step removed from the territory of The Ox-Bow Incident.

TMZ covered this aspect of the case here in connection with the September motion hearing. The video provides a glimpse of the gauntlet defendants and their attorneys have walked so far. With the trial at hand the courthouse is to become an armed encampment. One can only imagine the impact on jurors.

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