Weeks away from learning his sentence for the murder of George Floyd, former Minneapolis Police Officer Derek Chauvin is seeking a new trial, arguing that the overwhelming publicity surrounding the case deprived him of due process.
A jury convicted Chauvin on April 20 of second-degree murder, third-degree murder and second-degree manslaughter in the May 25, 2020, death of Floyd. His sentencing is set for June 25.
Chauvin’s attorney, Eric Nelson, filed a motion Tuesday asking Hennepin County Judge Peter Cahill, who presided over the case, for a new trial, arguing, among other things, that the “publicity here was so prejudicial before and during this trial that it amounted to a structural defect in the proceedings.”
The request is unlikely to be granted on its merits. But legal experts say Nelson may have solid grounds for an appeal given that he raised legitimate issues both in his motion and throughout the trial.
Before the trial began, Minneapolis agreed to pay the Floyd family a $27 million settlement. As the trial got underway, Minneapolis police shot and killed Daunte Wright in nearby Brooklyn Center, generating even more negative publicity.
“It was the perfect storm of bad publicity and setbacks across the board for [Chauvin],” Paul Applebaum, a St. Paul, Minn.-based criminal defense lawyer, told Yahoo News.
“If you look at each one of those issues that were raised,” Applebaum said, “separately, there's not enough there to get a new trial.” Altogether, though, the issues may have snowballed into a potential problem for the state. “I really think it's not inconceivable that you might get a new trial,” Applebaum said.
Nelson’s motion argued that Cahill abused his discretion by denying Chauvin a change of venue and by failing to sequester the jury before deliberations, which would have required them to avoid all media (not just media about the case).
The publicity during the proceedings, the motion said, included “intimidation of the defense’s expert witnesses, from which the jury was not insulated.” Nelson is likely referring to an incident involving Barry Vance Brodd, a defense expert on use-of-force practices who testified that he believed Chauvin had acted in a reasonable manner when pinning Floyd to the pavement with his knee. The weekend before closing arguments, police in Santa Rosa, Calif., said a group of people threw a bloody pig’s head on the front porch of Brodd’s former residence, USA Today reported.
“Not only did such acts escalate the potential for prejudice in these proceedings,” Nelson’s motion said, “they may result in a far-reaching chilling effect on defendants’ ability to procure expert witness — especially in high-profile cases, such as those of [Chauvin’s] co-defendants — to testify on their behalf.”
Chauvin’s co-defendants — former Minneapolis officers J. Alexander Kueng, Thomas Lane and Tou Thao — face charges of aiding and abetting second-degree murder and are set to stand trial in August.
Although not explicitly mentioned in the motion, experts say juror Brandon Mitchell, who recently spoke publicly about the proceedings and was revealed to have participated in a protest event last summer, could also potentially help the defense’s motion for a new trial.
After Mitchell went public, speaking to the New York Times and other outlets, a photo surfaced on social media of him wearing a black T-shirt with an image of Martin Luther King Jr. and the phrase, “Get Your Knee Off Our Necks.” The photo was reportedly taken at an event in D.C. to commemorate King’s famed 1963 “I Have a Dream” speech.
In his defense, Mitchell told Minneapolis news outlet WCCO that he went to Washington to attend a voter registration rally and would have gone “even if George Floyd was still alive.”
David Schultz, a visiting professor at the University of Minnesota Law School and a professor at Hamline University, told Yahoo News that he doesn’t believe the Mitchell issue itself is severe enough to get Chauvin a new trial.
“We still don't have what I would call a definitive smoking gun,” Schultz said. But he added that it could raise questions of whether Mitchell was honest during jury questioning. During the selection process, prospective jurors were asked about what they knew about Floyd and the case and if they had attended any demonstrations after Floyd’s death, the Washington Post reported.
When asked if he’d ever participated in any protests about police brutality, Mitchell said “no,” the Star Tribune reported.
Schultz told Yahoo News that Cahill could possibly call Mitchell and the rest of the jury back into court again and question them. This would occur before Cahill renders a decision on Nelson’s motion.
“I have to be convinced that the defense is going to scrub the social media [accounts of] all the jurors and to try to find something else,” Schultz said, again stressing that there are still no guarantees that Nelson will succeed.
Applebaum said Cahill will likely rule before Chauvin is sentenced. The decision will likely be contested by the losing side at the Minnesota Court of Appeals, where the defense may face better odds, even as an appeal may take months, possibly years, to be decided.
“We’ve now got a whole bunch of issues,” Schultz said. “Request for a change of venue. Pre-trial publicity. The Minneapolis settlement. The Daunte Wright case. The juror coming out. We're starting to get a lot of stuff here that raises whether there's a Sixth Amendment violation [a right to a fair trial]. It's possible a court of appeals could say yes.”
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