Derek Chauvin should receive a new trial in the murder of George Floyd because of prosecutorial misconduct, judicial error and impropriety by jurors, an attorney for the former Minneapolis police officer argued in a new filing.
Motions filed Tuesday by defense attorney Eric Nelson focused heavily on several alleged missteps by Hennepin County District Judge Peter Cahill, who presided over the six-week trial, and also requested an unusual hearing to vet jurors’ conduct during trial and deliberations.
Chauvin should receive a new trial in “the interests of justice,” Nelson wrote in his motions, which alleged that Chauvin’s constitutional rights to due process and a fair trial were violated.
Jurors convicted Chauvin, 45, two weeks ago on all charges against him — second-degree unintentional murder, third-degree murder and second-degree manslaughter — in Floyd’s May 25 death.
Nelson did not return a message seeking comment. Filing such motions after a conviction is not an unusual move.
Nelson wrote that Cahill abused his discretion by denying Chauvin’s request for a change of venue, rejecting a previous request Nelson made for a new trial, failing to sequester jurors for the entirety of the trial and refusing to compel Floyd’s friend to testify at trial.
Cahill also erred, Nelson said, in giving jurors instructions that “failed to accurately reflect the law” and allowing prosecutors to call multiple use-of-force experts as witnesses, among other issues.
“The cumulative effect of the multiple errors in these proceedings deprived Mr. Chauvin of a fair trial, in violation of his constitutional rights,” Nelson wrote.
Cahill should have previously granted a new trial, Nelson said, because, “The publicity here was so pervasive and so prejudicial before and during this trial that it amounted to a structural defect in the proceedings.”
He pointed to publicity after testimony concluded but before deliberations began that resulted in “intimidation of the defense’s expert witnesses, from which the jury was not insulated.”
On April 18, a day before jury deliberations began, vandals left a pig’s head at the former California home of defense use-of-force witness and retired police Officer Barry Brodd. Blood was smeared on the house in Santa Rosa, north of San Francisco. A police statement read, “It appears the suspects in this vandalism were targeting Mr. Brodd for his testimony.” The incident was reported in local and national media.
News outlets also reported on a federal lawsuit filed in another case against the defense’s medical expert, retired Maryland Medical Examiner Dr. David Fowler.
“Not only did such acts escalate the potential for prejudice in these proceedings, 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 Mr. Chauvin’s co-defendants — to testify on their behalf,” Nelson’s filing read.
Attorney Earl Gray, who is representing one of three other former officers charged in Floyd’s death, said the publicity about Brodd and Fowler is making it more difficult for his client, Thomas Lane, and the other co-defendants to find and keep expert witnesses.
“Our experts, they aren’t real happy with the conduct of the public,” Gray said.
Lane and former Officers J. Alexander Kueng and Tou Thao are scheduled to be tried starting Aug. 23 on charges of aiding and abetting second-degree murder and manslaughter. Kueng’s attorney Thomas Plunkett declined to comment and Thao’s attorney Robert Paule did not return messages.
Before Chauvin’s trial began March 8, Nelson requested that jurors be sequestered for the entirety of the trial. He unsuccessfully renewed his request after Brooklyn Center police fatally shot Daunte Wright on April 11, arguing that it would unfairly impact jurors. Under Cahill’s orders, jurors were only sequestered once deliberations began April 19.
The city of Minneapolis announced a record $27 million settlement with Floyd’s family while jurors were being selected. Two jurors who had been seated before the settlement was reached were dismissed after telling the court that news of the development had biased their opinions.
Nelson said Cahill’s rejection of sequestration “resulted in jury exposure to prejudicial publicity regarding the trial during the proceedings, as well as jury intimidation and potential fear of retribution among jurors.”
Joseph Daly, emeritus professor at Mitchell Hamline School of Law, said the sequestration issue is a “strong” argument for Nelson, especially in conjunction with the Wright shooting.
“There are also justifications for non-sequestration,” Daly said, adding that it’s expensive for the courts, jurors dislike being isolated from their families and the COVID-19 pandemic presented new challenges to the process.
Nelson also requested a Schwartz hearing, a proceeding in which jurors are recalled to court and questioned about possible misconduct. Nelson did not elaborate on what prompted his request. However, juror Brandon Mitchell went public last week about his role in the case, and in recent days came under scrutiny by many commentators online for attending last August’s 57th anniversary of the March on Washington in Washington, D.C.
Mitchell, who is Black, told the Minneapolis Star Tribune he attended the event commemorating Martin Luther King Jr.’s “I Have A Dream Speech” and did not view it as a march against police brutality despite speeches from Floyd’s family members and a component of the event focusing on police reform. The event also advocated for other issues, including racial justice and voter registration.
Jurors should be questioned “on the grounds that the jury committed misconduct, felt threatened or intimidated, felt race-based pressure during the proceedings, and/or failed to adhere to instructions during deliberations,” Nelson wrote.
Chauvin is the first white officer in Minnesota history to be convicted of killing a Black civilian on the job.
Mitchell also told the Star Tribune he answered “no” to two questions in a juror questionnaire asking whether he or anyone close to him attended demonstrations, marches or protests about police use of force or police brutality. Daly said the first question narrowly focused on protests in Minneapolis and the second question was broadly worded.
“It is reasonable to say (Mitchell) answered the second question truthfully as best he understood the question,” Daly said. “His answers to the (jury selection) questions support these conclusions.”
Mitchell told Nelson during jury selection that he had knowledge of the case, had talked about it with his family and friends and that he had a “very favorable” opinion of Black Lives Matter.
Nelson also alleged that prosecutors from the Minnesota attorney general’s office committed “pervasive, prejudicial prosecutorial misconduct” that included “disparaging the Defense” and “failing to adequately prepare witnesses.”
“The court has already rejected many of these arguments and the State will vigorously oppose them,” said John Stiles, a spokesman for the attorney general’s office.
Daly predicted that Chauvin’s convictions would be upheld.
“All in all, I think Chauvin is going to be in prison for a good long time,” he said. “I don’t think this case is going to be reversed.”
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