My friend Bill Mohrmann is representing Derek Chauvin on appeal of his conviction for the murder of George Floyd. Former Acting Solicitor General of the United States Neal Katyal is representing the State of Minnesota. It’s something of a David and Goliath matchup. The Minnesota Court of Appeals was the first stop. The court held oral argument before a panel of three judges this past January. I reported on it here.
The principal issue on appeal was 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.
In the conclusion of his oral argument Bill 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 was exactly the atmosphere to which every juror in the case was subjected.
Today the Court of Appeals affirmed Chauvin’s conviction. The opinion of the court is posted online here. On the issue of venue that court held that the trial judge “does not abuse [his] discretion by denying” change of venue if he takes “mitigating steps and verifies that the jurors can set aside their impressions or opinions and deliver a fair and impartial verdict.”
The court’s discussion of the issue at pages 14-20 has an air of unreality that is entirely in keeping with the trial itself. “[W]ith a few very limited exceptions, the [pretrial} publicity was generally factual in nature.” The court drops footnote 4 in that sentence referring to “statements by the MPD police chief and the commissioner of public safety describing the incident as a ‘murder’ before he was convicted. However,” the court adds, “because the district court took numerous mitigating steps and verified that the jurors could decide the case fairly and impartially, we conclude that this properly eliminated any potential prejudice among the seated jurors.” The court does not note that Governor Walz and Attorney General Ellison did so as well, or that the pervasive atmosphere in the Twin Cities was one of mob justice. As I say, unreal.
I asked Bill for a comment on the decision. He texted me this this note on the law: “The big issue is at pages 18-20 – whether prejudice is presumed. The court addresses the argument at the bottom half of page 19. The court does not really address the arguments I made. Moreover, the discussion about the other cases bothers me – yes, Chauvin’s facts are different than the Sheppard case. There was not a carnival at Chauvin’s trial. There also were not any National Guard troops surrounding the Cleveland courthouse in Sheppard and the citizens of Cleveland did not burn down half of Cleveland after Sheppard’s wife died!”
As for next steps, Bill writes: “We are obviously disappointed in the decision. We have not yet had the opportunity to discuss the decision with Mr. Chauvin. However, the next step would be to ask the Minnesota Supreme Court and ultimately the U.S. Supreme Court to review the primary rulings from the Minnesota Court of Appeals. This would include specifically the venue issue which is particularly significant in Mr. Chauvin’s case because of the extent of juror exposure to pretrial publicity coupled with juror concerns with safety due to the riots.”
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