Investigating the Chauvin leaks

My old Faegre partner and friend Patrick Schiltz is United States District Judge for the District of Minnesota. After graduating from Harvard Law School, Judge Schiltz clerked for Justice Scalia for two years — one year on the District of Columbia Court of Appeals and one year on the Supreme Court. He is a brilliant and no-nonsense kind of guy.

Judge Schiltz is in the news because he has taken note of the unlawful leaks to the New York Times and Star Tribune in the Chauvin and related cases. Although I have focused especially on the leak underlying the April 29 Star Tribune story by Andy Mannix, I have discussed these leaks several times.

According to a source whose affiliation was not even hinted, Mannix jauntily reported that the Department of Justice would seek federal indictments of Derek Chauvin and his three former colleagues in the death of George Floyd. The unidentified source leaked this and related news to Mannix.

I have assumed, perhaps mistakenly, that Mannix’s source is affiliated with the Department of Justice, either the Office of the United States Attorney for Minnesota or the local office of the FBI. Mannix himself did not note that the problematic nature of the leak on which he based his story. The problematic nature of the leak must be the reason the identity of Mannix’s source was entirely shielded from view in his story.

As everybody knows, Chauvin was just convicted in state court of second-degree murder for Floyd’s death. He is to be sentenced on June 25. The State is seeking a sentence enhanced beyond the otherwise applicable sentencing guidelines. Whatever sentence is handed down, Chauvin will be going away for a long time. The case against the three other officers has been reschedule for trial in state court next March. The leak to Mannix can only prejudice their case. The redundant federal civil rights prosecution of all four officers has not been set for trial.

The Star Tribune reports:

U.S. District Judge Patrick Schiltz ordered the U.S. Attorney’s Office and the Minnesota attorney general to provide a list of every person to whom they disclosed grand jury activity.

He also ordered the U.S. Attorney’s Office to explain why he shouldn’t appoint an independent prosecutor to investigate and file criminal contempt of court charges for the disclosures. Schiltz wants the responses filed under seal no later than June 4.

At issue are stories published by the Star Tribune and the New York Times detailing the possibility of federal charges against the former police officers in Floyd’s murder.

On April 29, the Star Tribune published a story with the headline, “Feds plan to indict Chauvin, three other ex-officers on civil rights charges.” On Feb. 23, the New York Times published a story about the grand jury with the headline, “With New Grand Jury, Justice Department Revives Investigation Into Death of George Floyd.”

The New York Times story came out days before the beginning of jury selection in the state trial of Derek Chauvin, the officer who knelt on Floyd’s neck and was convicted in April of second-degree murder, third-degree murder and manslaughter.

Former officers J. Alexander Kueng, Thomas Lane and Tou Thao face charges of aiding and abetting second-degree murder and manslaughter. The three are scheduled to stand trial in state court next March.

Days after Chauvin’s conviction, the Star Tribune story revealed that the Justice Department had been working to indict him on federal charges, and if he had been acquitted in state court, the feds planned to arrest him at the courthouse, the story said, citing an unidentified source.

But Chauvin was convicted in state court and on May 8, the four former officers were indicted by the federal grand jury.

In his five-page order signed May 5, Schiltz cited the U.S. Supreme Court’s reasons for protecting the secrecy of grand jury proceedings: preventing the escape of those indicted, influence on deliberations, perjury or jury tampering.

“In order to safeguard the secrecy of grand jury proceedings, federal prosecutors are generally prohibited from disclosing matters occurring before a grand jury,” Schiltz wrote.

In this case, federal prosecutors were given permission to provide information to Attorney General Keith Ellison’s office, which is handling the prosecution of the four former officers. Ellison’s office then was prohibited from disclosing the information for anything other than investigative or prosecutorial reasons, Schiltz noted.

Jane Kirtley, professor and director of the Silha Center for Media Ethics and Law, said Schiltz appears to be conducting an investigation to find the source of the leaks without compelling journalists to divulge their sources.

“There’s always a risk they’ll conclude they have no recourse other than to go to the journalists,” she said. “Let’s hope that doesn’t become necessary.”

Star Tribune Managing Editor Suki Dardarian said, “I have no comment on the court’s actions, but I will say that the Star Tribune stands resolutely behind its pledge not to reveal the identities of anonymous sources.”

A spokeswoman for the New York Times declined to comment.

The newspapers are not immune from legal process. They nevertheless believe they are above the law as they ply their trade and have not the slightest compunction about compromising the constitutional fair trial rights of these particular defendants.

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