Below is my column in Hill on two subjects that emerged on the final day of Derek Chauvin’s trial that could now be prominent in any appeal. There will likely be a range of conventional appeal questions, from the elements of the murder to the adequacy of the evidence. Obviously, any appeal will wait until after the sentencing, which will take many weeks. However, on the final day, two points were highlighted that could play a role in the appeal. The first one about refusing to move and seizing the jury is very difficult to get the work done on the appeal. In this case, however, strong arguments must be put forward. I think Judge Cahill should have allowed the venue change and confiscated that jury as well. It is not clear whether the court asked the jury about coverage of legal proceedings, particularly after the inflammatory remarks by Rep. Maxine Waters (D., Cal.). However, there are credible reasons to question how this jury may have been influenced by the saturation of coverage of the trial as well as unrest in the region.
Here is the column:
The final day of the Derek Chauvin Trial in Minneapolis seemed at times to be a remake of the 1981 neo-noir film “True Confessions”. Let’s call it “True Concessions”. Judge Peter Cahill admitted that Rep Maxine Waters (D-Calif.) May have given the defense a basis to overturn any conviction, while prosecutors appear to have a stake in three other officials charged with George’s death put Floyd at the center of their cases. And it all happened on live television.
Damage below the waterline
Rep. Waters sparked a firestorm of controversy by flying to Minnesota to tell protesters to stay on the streets and fight for “justice” to be more “confrontational” despite days of riot, looting and other violence. She said no verdict would be accepted in the chauvin trial, other than a first degree murder conviction – a claim that could be a bit difficult to satisfy given that Chauvin is not charged with first degree murder. All of this when the jury literally started to deliberate.
Some of us noticed immediately that Waters single-handedly managed to undermine not only the Chauvin case, but also their own case against former President Trump. Waters, one of several members of the House of Representatives who sued Trump for inciting violence on Jan. 6, is now his best witness against their lawsuit. When she accused Trump of attempting to incite violence and intimidate Congress, Waters is convicted of inciting violence and intimidating the court.
One of those who denounced Waters was Judge Cahill, who stated in court: “I wish elected officials would stop talking about this case, especially in ways that do not respect the rule of law, the judiciary or our function. If you want to express your opinion, you should do so … in a way that is consistent with your constitutional oath. “Calling such comments” hideous “, Cahill added,” I give you that Congressman Waters may have given you something on appeal that could result in this entire process being overturned. “
His testimony was not just a criticism, but an admission that Waters’ comments could not have come at a worse time or put the court in a worse position. Some of us have criticized Cahill – who did an excellent job – for failing to change jurisdiction or confiscate the jury. Those decisions came back to haunt him as pre-trial protests grew and then exploded with the assassination of Daunte Wright in nearby Brooklyn Center, Minn. One of the chauvin judges lives in the Brooklyn Center, where rioting and looting broke out before Waters flew in and dumped gasoline on the fire.
Cahill turned down a defense motion on a retrial, but admitted that Waters’ comments increased the appeal challenges in upholding a conviction. Such statements on their own are unlikely to nullify a conviction – in fact, such motions are notoriously difficult to win – but Waters made it far harder for prosecutors in this case. The tragic irony is that Waters could be used to break the very belief that challenged it. In this case, rioters are unlikely to go to her home or burn stores in her district. These crimes will be concentrated in Minnesota, but could also spread across the country.
The risk of unrest can be greater due to the large number of fees. It is not clear whether a manslaughter conviction will satisfy protesters when accompanied by acquittals for murder. This was always more manslaughter than murder. More importantly, the addition of the murder charges created a potential focal point for protests with acquittal or later retraction on appeal. While a full acquittal seems unlikely, the possibility exists of a mix of acquittals and a hanging jury that could spark further riot.
Persecution of the powerless?
When Waters undermined a conviction of Chauvin, the prosecutors themselves appeared to undermine the prosecution of the other officials. At one of the most surprising moments of the trial, prosecutor Steve Schleicher appeared to exonerate the other three officers to further incriminate Chauvin. In his concluding argument, Schleicher stated that Chauvin “had power and that the other officers, those standing by, were powerless”.
Persecuting the powerless is not usually part of the prosecutor’s oath. What is striking about Schleicher’s statement is that the cases against the other officials in this case depend on a conviction. As mentioned earlier, the prosecutors structured the cases against all four officers like an inverted pyramid. Alexander Kueng, Thomas Lane and Tou Thao are charged as aides and advocates of Chauvin’s alleged murder or manslaughter. If Chauvin is acquitted or the jury blocks the charges, their prosecutions would collapse.
Prosecutors have now admitted that the other three officers were as powerless as people standing by on the street. The standard for aiding and abetting is not particularly demanding in itself as it covers anyone who “willfully assist, counsel, hire, counsel, or conspire with or otherwise procure the other to commit the crime”. However, proving such a crime can be more difficult, especially given a chaotic crime scene.
Schleicher’s admission adds to an already difficult case as the other officers have taken steps that can be cited by their defense lawyers to aid Floyd. The officers repeatedly called for an ambulance and Lane, a new officer in the force, tried to de-escalate the situation. When Floyd pleaded, “Please don’t shoot me man,” Lane replied, “I won’t shoot you man.” When Floyd tried not to get into a police car and said he couldn’t breathe, Lane offered to sit with him, roll down the windows and turn on the air conditioning. It was Lane – who had only been on duty for a few days – who urged Chauvin to get Floyd out of the knee-restraint position.
Schleicher’s words can be quoted in pre-trial defense motions to dismiss the case. While it will be more difficult for the prosecutor to introduce such concessions into the actual trial of the three remaining officers, it might be more difficult for this law enforcement team to appear in these other cases – especially with Schleicher, who would have to argue about this as opposed to one other jury of what he argued before this jury. And that never goes very well with a court case.
Neither Waters nor the prosecution seemed concerned about how their words would affect this or any subsequent case in the assassination of George Floyd. Whatever the benefit of these statements, their actual cost could be prohibitive as Minnesota grapples with the uncertainty and unrest that ensues.