The Chauvin appeal: A second look

Minneapolis attorney Marshall Tanick has taken a look at the issues raised in the Minnesota Court of Appeals hearing on the murder conviction of Derek Chauvin. Marshall discusses the hearing in the Star Tribune op-ed column “Did Chauvin get a fair trial?” I wrote about the hearing here last week. Marshall more or less provides a second opinion that aligns with mine, if somewhat faintly:

[T]he core of the argument presented to a three-judge panel in St. Paul by his appellate lawyer, William Mohrman, who did not represent Chauvin at trial, was that the volatile circumstances surrounding the blindingly high-profile proceedings nearly two years ago deprived the accused of his constitutional right to a fair trial.

The concern that Chauvin might not be able to be fairly tried by a jury of his peers, as guaranteed by the Sixth Amendment to the U.S. Constitution and the parallel provision of the Minnesota Constitution, was first raised in this space — by me — right after the officer was charged a few days following Floyd’s death on the street outside a south Minneapolis grocery on the evening of Memorial Day 2020. The incident was witnessed by nearly everyone on multiple occasions thanks to video recorded on a youthful bystander’s cellphone.

The question posed then, at the height of the frenzy over the slaying, was: Can Derek Chauvin get a fair trial? The issue now pending before the appellate jurists is: Did he?

The answer may well be no, based upon reasonably compelling arguments made by Chauvin’s skillful appellate counsel. If so, a new trial could be mandated and, if that occurs, it might be conducted elsewhere in the state.

Courts rarely (hardly ever in Minnesota) overturn criminal jury verdicts because of prejudicial publicity, dating back to the infamous Sam Sheppard murder trial in the 1950s. More than a decade afterward, the U.S. Supreme Court reversed the verdict that the Cleveland osteopath killed his wife, pointing to the media-induced frenetic “carnival atmosphere” of the proceedings.

But such reversals are outliers, and the death knell for those types of challenges may have been sounded last year when the high court upheld the death penalty imposed by a jury in Boston on the surviving brother of the 2013 Boston Marathon bombing, roundly rejecting a prejudicial publicity claim.

Marshall doesn’t put it quite this way, but the argument goes well beyond a claim of prejudicial publicity. It goes to the hang ’em high atmosphere that literally surrounded the court:

In Chauvin’s case, while there were substantial prejudicial statements made before the trial about the defendant’s guilt from numerous high-ranking public officials — like the Minneapolis mayor, chief of police and many others — Chauvin’s appeal steered clear of castigating the extensive pretrial media reporting and trial coverage and focused instead on the unusual conditions under which the proceeding occurred.

The trial judge, Peter Cahill, did an admirable and a tireless job of handling the case, including guiding the lawyers through the jury selection process, known as voir dire, to ferret out biased jurors. But the surrounding circumstances were at the crux of the argument presented by Chauvin’s lawyer.

Mohrman pointed to the stark, fortress-type defenses that surrounded the courthouse in downtown Minneapolis, where the trial took place, including concrete barriers, barbed wire and well-armed National Guard troops. That “physical presence” and the atmosphere it produced, he argued, was a daily reminder to the jury of the potential for renewed civil unrest, like the destructive disturbances that had immediately following the incident.

Those circumstances, he asserted, unduly influenced the jury to the detriment of Chauvin, instilling fear in jurors, whom he characterized as “having a stake in the outcome” as they could be caught up in any ensuing unrest resulting from an acquittal. They “lived here,” he emphasized, suggesting the same intimidating features would not exist for a jury empaneled somewhere else in the state.

I would add that not a single one of the three judges on the Court of Appeals panel evidenced any serious interest in the fair trial issue that permeates the case. I rate the chances that the court will find in Chauvin’s favor on this issue (and order a new trial) to approach zero. Why is that? Marshall doesn’t raise this question. I think readers should at least be aware of the court’s apparent lack of interest in it under the mind-boggling circumstances of the trial. The “carnival atmosphere” of the Sheppard case had nothing on this trial.

In addition to Marshall’s serious discussion of the merits of this issue, I am grateful for Marshall’s recognition of Bill Mohrman as “Chauvin’s skillful appellate counsel.” The recognition is deserved in this case. Bill has done an excellent job.

As I wrote in my own comments on the appeal hearing linked above, I put out a call on Power Line for some Minnesota lawyer to step forward and represent Chavuin on appeal when he was relegated to representing himself. Bill Mohrman answered the call in the highest tradition of the Minnesota bar. Speaking briefly with Marshall this morning, I infer that he is unaware of the circumstances behind Bill’s representation of Chauvin. Insofar as they reflect fear of the crowd and revulsion for the defendant, they are nevertheless in their own way illustrative of the fair trial issue.

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