Here’s the state of play in Minnesota as what is supposed to be Day Two gets under way in former police officer Derek Chauvin’s murder trial, arising out of George Floyd’s death in police custody last year. (My column Sunday explaining the complications that have delayed matters is here, and Monday’s post on the delay is here.)
Last week, the Court of Appeals instructed the trial judge, Peter Cahill, to reconsider his refusal to reinstate the third-degree “depraved indifference” murder charge against Chauvin, in light of a divided appellate panel’s ruling in the Noor case (which upheld such a third-degree murder charge on similar facts). Judge Cahill has not yet ruled on that. Regardless of whether Cahill believes the dissent (which is in accord with Cahill’s own analysis of depraved indifference precedents) had the better of the argument in Noor, the panel majority’s ruling is binding, so Cahill should reinstate the charge.
Reinstatement would significantly enhance the state’s chances of convicting Chauvin of murder, so the state will appeal if Judge Cahill remains obstinate. And the state is right that Cahill should rule on this before the questioning of prospective jurors begins, because the ruling will materially affect how the parties try the case.
If, as expected, Judge Cahill reinstates the third-degree murder charge, Chauvin will ask the Minnesota Supreme Court to review the appellate panel’s ruling on an expedited basis. I am not familiar with the pace of state criminal-law practice in Minnesota, but I presume the state’s highest court would expedite the appeal — in light of the public importance of the case, the fact that the state’s court system and security forces have expended significant resources to prepare to hold the trial beginning in March, and the fact that the Supreme Court is already slated to review the same depraved indifference issue in the Noor case, although not until June.
The parties have been preparing for months and the lawyers have cleared their calendars for a proceeding that will probably take a couple of months. With everyone prepared for trial, Judge Cahill would like to proceed with jury selection and other preliminary odds and ends while Chauvin’s appeal proceeds. That would make practical sense, because jury selection could take three weeks or more. Unfortunately, it does not make legal sense. Technically, if the Supreme Court takes the case, the lower court does not have jurisdiction to act. Ergo, an expedited appeal would probably postpone everything for at least a few weeks.
Prosecutors have made an emergency application to the Court of Appeals to direct Judge Cahill to adjourn the trial until the controversy over the third-degree murder charge is sorted out.
Here is a measure of why it will be tough to pick a jury. The court was prepared to begin qualifying the first 50 members of the venire starting Monday. To “qualify” a prospective jury means to get a pool of people who convince the court and the parties that they could decide the case fairly and impartially. Jurors who obviously don’t fit that description get booted for cause. From that qualified pool, the parties exercise their peremptory challenges (in federal practice, the defense gets ten challenges and the prosecution six) until we get down to a jury of twelve, plus some alternates (usually two, but up to six, in federal court — it depends on the expected length of a trial). So to be on the safe side, you need to qualify close to 40 prospective jurors before the peremptory challenges begin.
The Star Tribune reports that 16 prospective jurors, nearly a third of the first 50, were struck for cause before any face-to-face questioning began. In the main, this means they indicated they had already formed such a strong impression about the case based on the pretrial publicity that they cannot be fair; or they are fearful of sitting on the case — as the summer riots demonstrated, the jury will come under great pressure to convict Chauvin of murder, regardless of whether the state’s evidence establishes guilt beyond a reasonable doubt.
This is going to take a while.