The Chauvin appeal hearing

When I read that Derek Chauvin had no lawyer to appeal his murder conviction to the Minnesota Court of Appeals I was incredulous. I put out the call on Power Line for an attorney to step forward to represent him on appeal in the highest tradition of the profession. Minnesota attorney Bill Mohrman answered the call. Bill is a founding partner of Mohrman, Kaardal & Erickson as well as a former colleague and old friend.

If you polled Minnesota lawyers, half might say that were inspired to enter the profession by Atticus Finch and half by Clarence Darrow. In my case, it was Darrow. Darrow famously represented a panoply of unpopular and/or guilty defendants (including himself). Chauvin is beyond the pale of what now passes for the idealism of the profession. I thought it was a professional disgrace that Chavuin might have to represent himself on appeal.

The Hennepin County Attorney’s Office and the Office of the Minnesota Attorney General have armies of lawyers to represent the state in criminal prosecutions. Yet attorneys in private practice couldn’t wait to attach themselves to the state’s prosecution of Chauvin at trial.

One such attorney is former Acting Solicitor General of the United States Neal Katyal. He must be one of the most prominent appellate lawyers in the United States. He has been on board with the prosecution on a pro bono basis from early on at the trial court level and on appeal.

Katyal flew in from Washington to represent the state on appeal in the oral argument this morning. I watched the Court’s live stream of the oral argument. Let’s just say that Katyal had easy sledding.

Bill argued the case in a hearing before a three-judge panel of the Minnesota Court of Appeals. He has briefed the appeal and argued the case with courage and skill. All court filings in the case are accessible on this page.

Bill’s leading argument on appeal is that pretrial publicity and related riots required a change of venue — that they precluded a fair trial in violation of the Sixth Amendment. As we noted repeatedly during trial, the martial security that protected the courthouse graphically represented the issue. So did the anticipation of riots in the event of an acquittal.

The 24-story Hennepin County Government Center was closed to everything but the trial for reasons of security. Barricades and secure fencing topped with concertina wire surrounded the perimeter. The massive building was off limits to nearly everyone who wasn’t involved in the trial. The building was locked down and everyone — and I do mean everyone — knew why.

At the outset of Bill’s argument Judge Peter Reyes pressed Bill on the trial judge’s failure to hold a so-called Schwartz hearing on juror 52. Although he omitted any mention of it on his jury questionnaire, juror 52 attended a march in Washington at which the death of George Floyd was a hot issue. This was a secondary issue on appeal and yet the court pressed Bill on it for about half his allotted 15 minutes. Why, I do not know.

As I say, the issue of venue goes to Chauvin’s constitutional right to a fair trial. Think of the Supreme Court case of Dr. Sam Sheppard. The Sheppard case had nothing on the hang ’em high atmosphere that pervaded Minneapolis from the death of George Floyd through the conviction of Derek Chauvin. More recently. the Supreme Court laid out the law in the Skilling case.

Bill’s last comment in rebuttal pointed out the personal stake of the jurors in a verdict that would keep the peace in our community. He cited Never v. Killinger in support of his argument. The federal district court in that case held: “The Court cannot imagine a more prejudicial extraneous influence than that of a juror discovering that the City he or she resides in is bracing for a riot [if the defendant is acquitted].” That isn’t how it’s supposed to go down, but that is how it went down in Chauvin’s case.

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