I have posted three previous editions of footnotes to our coverage of the trial of Derek Chauvin for the death of George Floyd. My purpose here is to provide background on the legal issues in the case for those who seek to understand them. I post these footnotes in the form of bullet points and differentiate facts and law from (my) opinion. Previous editions are included below under May 5, May 2 and April 25. Today I want to add six footnotes in the same form:
• By far the biggest news in the case last week was the indictment of Chauvin and his three former colleagues on federal civil rights charges here in the United States District Court for the District of Minnesota. I posted the government’s press release on Scribd here. It lists eight attorneys — count ’em — prosecuting the case. Query who was responsible for running the investigation and securing the indictments from the grand jury.
• My friend Andrew McCarthy devoted his weekly NR column to the new charges yesterday. Andy is of course the former Assistant United States Attorney who prosecuted the Blind Sheikh. He knows what he is talking about and his lengthy column arrives at this key judgment: “As a law-enforcement matter, the federal prosecution is not defensible.”
• Here is the full paragraph, italicized for emphasis: “As a law-enforcement matter, the federal prosecution is not defensible. It is a needlessly redundant expenditure of federal resources to achieve a result that will already have been achieved by the state prosecutions. It puts defendants in jeopardy a second time for the same wrongful actions. Convictions would not advance accountability, but there is a significant risk of acquittals that would undermine accountability. And, under the guise of prosecuting an abuse of civil rights, the Justice Department and its Civil Rights Division are quite intentionally violating the civil rights of the defendants to fair criminal proceedings in the state court.”
• Federal courts reporter Andy Mannix has his byline on the Star Tribune story linked above, although he had the help of a cast of thousands in compiling favorable quotes on the federal indictment from former Nation of Islam hustler Keith Ellison, Floyd family attorney Ben Crump, NAACP President Derrick Johnson, and — here he comes — the Reverend Al Sharpton. I tried to broaden Mannix’s circle of acquaintances and extend the range of reported opinion on the indictment via the tweet below.
This from former AUSA @AndrewCMcCarthy, who prosecuted the Blind Sheikh, may come as a shock to readers who get their news from @AndrewMannix:
"As a law-enforcement matter, the federal prosecution is not defensible. "
The DOJ’s Abusive Indictment…https://t.co/LplgEKH5K7
— Scott Johnson (@scottwjohnson) May 8, 2021
• Before the federal indictment last week juror number 52 identified himself as Brandon Mitchell and made the media rounds. I turned my May 5 footnotes below into a Spectator column on Mitchell. The Daily Mail provided a contrasting take in “Derek Chauvin juror LIED about protest: Cop’s hope of appeal boosted after picture emerges of juror at BLM rally wearing ‘Get Your Knee Off Our Necks’ T-shirt despite telling court he’d never been on a march.”
• Yesterday afternoon Chauvin defense attorney Eric Nelson filed a motion for new trial and a related motion for a hearing to interrogate the jury in order to impeach the verdict (a so-called Schwartz hearing now codified in Rule 26.03, Subd. 20(6) of the Minnesota Rules of Criminal Procedure). Nelson also asked for additional time to file a memorandum of law in support of the motions “in light of the time that was required for preparation of partial transcripts of the proceedings.” The court has posted the motions here.
• With one or two exceptions Nelson’s new trial motion appears to be pro forma. Two such exceptions are raised by the court’s denial of Chauvin’s motion for a change of venue and the underlying problem of pretrial publicity, issues discussed many times on this site.
• Nelson cites the hoary Supreme Court case involving Cleveland osteopath Sam Sheppard in support of his new trial motion on these issues. Sheppard was of course the inspiration for the television series and subsequent movie The Fugitive.
• Nelson’s new trial motion leads with these two issues. They are his strongest. It’s downhill from there. I will withhold further comment on them until Nelson files his memorandum of law in support of the new trial motion.
• Media attention has been focused on Brandon Mitchell, juror number 52. Mitchell attended the event observing the anniversary of Martin Luther King’s march on Washington in D.C. this past August 28 wearing a t-shirt sporting the slogan Get your knee off our necks and stating BLM.
• This bears on Nelson’s motion for a Schwartz hearing based on juror misconduct. The misconduct would be Mitchell’s alleged failure to provide truthful answers on the juror questionnaire or during jury selection.
• As a matter of law, I think this is much ado about approximately nothing. My notes on Mitchell’s responses to Nelson during jury selection reflected some knowledge of the case that was inimical to Chauvin: he wondered why officers didn’t interrupt Chauvin’s conduct before Floyd’s death. I think that was a fair question that reflected the uphill battle Chauvin faced on the merits at trial. As I commented during the trial based on the testimony of the bystander witnesses, everyone on the scene seemed to know what was happening except Chauvin.
• My notes further reflect Mitchell’s “very favorable view” of BLM and his statement supporting the view that racially discriminatory misconduct takes place “well beyond what the media can report.”
• My notes also reflect that Mitchell stated during jury selection that he wanted to serve on the jury because he “would love to be a part of this historic case.”
• If Mitchell’s previous statements didn’t raise a red flag for Nelson, I thought the last statement should have. Each of these statements is consistent with Mitchell’s t-shirt. In my view, Nelson had more than enough information to mandate the exercise of a peremptory strike on Mitchell.
• Chao Xiong quotes Mitchell on his attendance at the anniversary march in Washington in his Star Tribune story. Chao quotes two questions on the juror questionnaire:
The first question asked, “Did you, or someone close to you, participate in any of the demonstrations or marches against police brutality that took place in Minneapolis after George Floyd’s death?”
The second asked, “Other than what you have already described above, have you, or anyone close to you, participated in protests about police use of force or police brutality?”
Mitchell answered “no” to these two questions in the juror questionnaire.
• Here is the relevant portion of the story:
The event was “100 percent not” a march for Floyd, Mitchell said, adding, “It was directly related to MLK’s March on Washington from the ’60s … The date of the March on Washington is the date.”
The event included advocating for racial justice, increasing voter registration, pushing for a new version of the Voting Rights Act of 1965 and urging participation in the 2020 census.
It also focused on police use of force. Floyd’s brother and sister, Philonise and Bridgett Floyd, and family members of others who have been shot by police addressed the crowd. It served as a rallying point for the George Floyd Justice in Policing Act, a federal police reform bill.
• If Judge Cahill grants Nelson’s motion to call Mitchell in for a Schwartz hearing, I think he is extremely unlikely to find Mitchell guilty of juror misconduct. I want to hear more, but I think I would agree with him.
• Chauvin was convicted of second-degree murder and two lesser included offenses. Minnesota law (i.e., Minn. Stat. § 609.035) follows a “single behavioral incident” rule precluding additional punishment for the same “conduct.” See, e.g., the Minnesota Supreme Court decision in State V. Branch (2020).
• Here all three offenses were inarguably predicated on the same conduct. At least the State does not dispute this point. Accordingly, I believe the rule applies in this case. Chauvin is to be sentenced on the second-degree murder charge, but not on the lesser included offenses.
• The applicability of the third-degree murder charge to the facts of the case raises a question of law. Holding that the third-degree murder charge did not apply to the facts in the case, Judge Cahill originally dismissed it. He reinstated it on the express order of the Minnesota Court of Appeals based on its February 1 ruling in State v. Noor.
• The Minnesota Supreme Court has accepted the Noor case for review. It is to be argued next month. We won’t have a decision in the case until later this year. The third-degree murder charge against Chauvin should stand or fall with that decision. For the reasons stated above, however, it won’t matter unless the second-degree murder charge against Chauvin is reversed on appeal.
• As I have repeatedly noted in my own trial coverage, the Hennepin County District has set up a page with access to all public filings in the case. Here it is. It includes all the wrangling over the third-degree murder charge.
• Chauvin’s sentencing is scheduled for June 25. Sentencing is generally governed by the Minnesota Sentencing Guidelines. The presumed sentence in the Chauvin case is around 12-and-a-half years.
• The State has moved for an upward sentencing departure. The State’s memorandum is here. The State has separately filed several Minnesota appellate cases supporting its motion for an upward sentencing departure. Chauvin’s memorandum opposing the State’s motion is here. All these materials are accessible under the April 30 filings.
• I believe the Minnesota Sentencing Guidelines were originally adopted in 1980 in part to prevent disparities in sentencing based on race or other inappropriate factors. If they were ever needed for this purpose, I think they have been highly successful. However, that is not the impression one would get from the Minnesota Supreme Court’s farcical 1993 Task Force Report on Racial Bias in the Judicial System. (The report addresses sentencing at pages 49-58.) See my 2013 Federalist Society remarks “Bias in the air.”
• Brandon Mitchell was juror number 52. He participated in the deliberations on the verdict and is the first juror to have spoken to the press about them. KARE 11’s Lou Raguse interviewed Mitchell and has posted the transcript here along with a 30-minute video of the interview.
• Mitchell also spoke to the Associated Press (Amy Forliti and Doug Glass), the Star Tribune (Chao Xiong), and the Wall Street Journal (Joe Barrett and Deena Winter). Lou Raguse, Joe Barrett, and Chao Xiong attended the trial in the Media Business Center across the street from the courthouse.
• Barrett’s WSJ story includes this revelatory tidbit: “Each morning, all jurors would drive to pickup locations in the suburbs and then were driven to the courthouse by deputies in unmarked cars, he said. Then they would leave from several different buildings, sometimes a block or two away from the courthouse.”
• Barrett also quotes Mitchell to the effect that he’d go to his mother’s home in the Minneapolis suburb of Brooklyn Park “to feel some love” after tough trial days. Brooklyn Park is immediately north of Brooklyn Center, the scene of the death of Daunte Wright and related events giving rise to the curfew imposed during Chauvin’s trial.
• It was reported last week — via a leak to the Star Tribune’s Andy Mannix — that the Department of Justice allegedly plans to indict Chauvin and the three other officers facing trial on state charges in August on federal criminal civil rights charges.
• Mannix’s story is sourced with perfect vagueness. The federal project must have been initiated as part of a “backup” plan in case Chauvin would have been acquitted. Mannix’s talkative “sources” apparently did not explain what purpose federal civil rights charges would serve in the event of convictions on the state charges, or Mannix wasn’t asking.
• Every left-wing organization in the United States including colleges, universities, and religious sects has taken the verdicts as an occasion to pronounce on what is to be done. These pronouncements have taken the form of reflections, letters, or messages to alumni and members. Peter Berkowitz responds to the “reflections” of Swarthmore College President Valerie Smith in his own open letter to her. My taste runs to something harsher, but at least Berkowitz is talking back and illustrating one way to do it. I have just deleted the messages in disgust.
• The thirteenth and fourteenth seated jurors served as alternates and were released at the end of the trial. Juror number 96 — Lisa Christensen — was the thirteenth seated juror. She made the media rounds last week in the aftermath of the verdict.
KARE 11’s Lou Raguse interviewed Christensen in “‘I wish it didn’t have to happen’: Alternate juror reflects on Derek Chauvin trial.” Christensen lives in Brooklyn Center and had to navigate her way home through the crowds blocking intersections to protest the death of Daunte Wright.
Raguse: Did you want to be a juror?
Christensen: I had mixed feelings. There was a question on the questionnaire about it and I put I did not know. The reason, at that time, was I did not know what the outcome was going to be, so I felt like either way you are going to disappoint one group or the other. I did not want to go through rioting and destruction again and I was concerned about people coming to my house if they were not happy with the verdict.
• The Biden-Harris Department of Justice announced an investigation of the Minneapolis Police Department the day following the verdict. They are from the federal government and they are here to help us. NR’s Andrew McCarthy explains in the Corner post “Obama Encore: Biden Justice Department Announces Investigation of Minneapolis Police Department.”
• The Manhattan Institute’s Heather Mac Donald said everything I would have said if I had “the necessities” in “A troubled rule of law.” Heather’s column is the best thing I have read since the jury handed down the verdicts in the Chauvin trial.
• Alan Dershowitz takes up a theme that has preoccupied me in my own comments on the case in the Gatestone column “A Long and Sordid History of Crowds Threatening Violence in the Event of a Jury Acquittal.”
• As I noted last week, I spoke with Spectator editor Freddy Gray on the Friday before the jury heard closing arguments and retired to deliberate (podcast below). The Spectator also posted the column I wrote immediately following the jury’s return of the verdicts on Tuesday under the headline “How fair was the Derek Chauvin trial?” The Spectator has fixed the proofreading errors that reflected my haste in completing the column the afternoon the verdicts were returned.
• Working on the column put me in mind of Robert Bly’s beautiful poem “Driving toward the Lac Qui Parle River.” Read it and you’ll see why.
• Friends sent me the BBC clips below.
— NTB Media (@itsNTBmedia) April 24, 2021
— NTB Media (@itsNTBmedia) April 24, 2021