The conviction of former Minneapolis police officer Derek Chauvin was undermined this week after the previously anonymous judge number 52 released interviews to discuss his jury experience and support the movement to curb police abuse. The problem was not the public disclosure of his identity (which the judges can choose), but what triggered his self-identification on the internet. A picture soon surfaced showing Brandon Mitchell in a Black Lives Matter t-shirt with a reference to the death of George Floyd. The picture was raised as a contradiction to his answers in voir dire and as an appeal question regarding jury bias that could be used to challenge the conviction.
The trending photo, which is trending on social media, was originally posted to Facebook in August 2020 and shows Mitchell wearing a hat that reads “Black Lives Matter” and a t-shirt that reads “BLM” that says “Get Your Knee Off Our Necks ”. a general reference to Floyd’s death. The photo was published by his uncle Travis Mitchell with the caption “The next generation is socially active and represents my son Marzell, my nephew Brandon Rene Mitchell and the Brotha Maurice Jauntiness Johnson in DC.”
There’s nothing wrong with the photo, of course, and it reflects his uncle’s pride as they marched to Washington to commemorate MLK’s famous 1963 “I Have a Dream” speech. The march highlighted the campaign against police abuse and apparently many protested against Floyd’s murder. Mitchell insists he didn’t go to protest Floyd’s murder.
The problem really is how Mitchell answered the terrible questions. For example, Mitchell answers two questions in the negative:
“Did you, or anyone close to you, take part in any demonstration or demonstration against police brutality that took place in Minneapolis after George Floyd’s death?” One question according to the newspaper was.
“Apart from what you have already described above, have you or anyone close to you participated in protests against the use of force by the police or against police brutality?”
On March 15, Mitchell was asked by the judge on March 15 if he was aware of the Chauvin and George Floyd cases. He replied that he had “heard some basic information about trial dates, etc. from the news” but not the type of information “that would prevent him from serving as an impartial juror”.
I’m not sure why the defense couldn’t have found this image on the internet, which could pose a security issue with any challenge. However, this is still a credible basis for further investigation and possible challenges.
In Irvin v. Dowd, 366, US 717, 722 (1961), the Supreme Court found that “the minimum standards of due process” require a fair hearing from competent and impartial jurors. See also United States v Tegzes, 715 F.2d 505, 507 (11th Cir. 1983) (citing Murphy v Florida, 421 US 794, 799 (1975) Panel of impartial, indifferent jurors. ‘”) In cases such as Pena -Rodriguez, the Supreme Court ruled that statements in the jury room showing racial prejudice warrant a reversal. The line is more blurred when it comes to political bias, but few cases involve a juror who previously discussed the defendant and his case.
The controversy is strikingly similar to the discoveries made of Juror 1261 in the trial of Trump associate Roger Stone. I have written a number of columns on Tomeka Hart that clearly gave incorrect or misleading answers in voir dire. Hart is a Democratic activist and critic of the Trump administration. She not only participated in unknown protests and posted anti-Trump statements on the Internet, but specifically discussed the Stone case.
However, District Court judge Amy Berman Jackson was willfully blind to excuse Hart’s behavior and avoid ordering a new trial. I predicted that the court would reject the motion rather than defend the defendant’s right to an unbiased jury. The court simply brushed aside these clear examples of bias. Jackson wrote:
“The defendant has not shown that the jury lied; Nor has it shown that the allegedly disqualifying evidence could not be found through careful scrutiny at the time the jury was selected. While social media communications may suggest that the judge had a strong opinion on any particular person or topic, it does not reveal that she had an opinion on Roger Stone, which is the opinion that matters. . . To the extent that any of the social media posts could be viewed as inconsistent with the judge’s questionnaire, they do not warrant a new trial as they fail the legal test for something “newly discovered”. [A] The defendant who applies for a new trial must show that the information contained in his application could not have been discovered earlier by exercising the duty of care. “
I agree with Judge Jackson that the question arises whether this information “may have been discovered earlier through due diligence.” The court finds
“The foreman’s views were certainly not hidden at the time the jury was selected. The juror’s personal affiliation with democratic politics was stated in her written responses. She said directly that she had opinions about the “officials” on the list of people who might be mentioned in the case, and Donald Trump was the most prominent, if not the only “official” named. “
This was publicly available on social media, and the question remains why the defense was unaware of Hart’s earlier political statements. One would have thought that Hart’s political past would have led to a closer scrutiny of her earlier statements, but as I discussed earlier, the minutes show only a brief and factual scrutiny.
Jackson’s decision shows the additional burden placed on the defendants in expensive, high-profile legal proceedings. The judge does not want to endure the cost and trauma of a new trial, especially not under threat of civil unrest. They talk a good game about ensuring a fair trial, but when faced with jury bias, in such cases they rarely act to defend it.
It is still not clear how much Mitchell is biased. Some reports suggest he may have podcasts on police brutality and the George Floyd case. That would be especially serious, although we saw in the stone process how long the dishes will go to avoid the obvious.
The defense will have the same uphill battle in the chauvin appeal and the question is if there is anything else besides the photo. It also has to be ready, as in the Stone case, to answer why it didn’t do full internet research for potential jurors.