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INTRO MUSIC
MEGAN GERMUNDSON: Hi everyone, I’m Megan Germundson, and you’re listening to “In the Know,” a podcast by the Minnesota Daily.
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GERMUNDSON: In just a little over one week, the trial of former Minneapolis Police officer, Derek Chauvin, will begin. Chauvin is charged with second-degree murder and second-degree manslaughter in the death of George Floyd.
The video of the former police officer kneeling on the neck of George Floyd was seen around the world and sparked mass protests against police brutality.
The legal system can be complex. Ahead of a high-profile case like this, we wanted to get a better understanding of how it works. In today’s episode, we spoke with legal professionals to break down what to expect from the trial.
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ABIGAIL CERRA: Good morning. My name is Abigail Cerra. I’m an attorney in Minneapolis. I’ve had different kinds of law jobs in the past. I’ve been a clerk to a judge. I’ve been a public defender. I’ve been an attorney in the civil rights department and now…
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GERMUNDSON: Abigail Cerra is a commissioner on the Minneapolis Police Conduct Oversight Commission, and works as a lawyer in the private sector. I asked her what the public should know about this case.
CERRA: I think the public should just steel themselves for the fact that this trial is going to be long and it is going to be tedious. All trials are tedious. It’s just a function of the law. There’s a lot of rules of evidence, rules of court. It’s not just a narrative process where someone comes in and gives their testimony and walks out. There are all kinds of limiting instructions, direct examination, cross-examination — it’s really not intuitive. It’s really not what you would think. It’s very much an administrative process, on its best day, on the simplest of trials, the simple issues. And of course, this is incredibly high profile, perhaps the most high profile trial in the entire country, with a lot of different legal issues at play. That’s only going to make this process much much longer, and it is taking place during a pandemic.
GERMUNDSON: To comply with COVID-19 restrictions and guidelines, there’s been a special courtroom constructed for Chauvin’s trial that will make it possible to have a jury present and maintain social distancing.
CERRA: Normally the jury would be pooled in one big room and there’d be tons of jurors, literally hundreds of people in one big room together. I’m assuming that’s not happening here. So, that’s gonna slow down the process.
A typical murder trial would probably take two weeks. I think a conservative estimate would be that this trial will take six weeks. And I think again, on its best day, a trial is frustrating and then it stops and starts. The jury’s called up, the jury is given a break. It’s a lot of on-off, hurry-up-and-wait kind of stuff on its best day. That’s going to be just the name of the game.
GERMUNDSON: I’m so curious about the jury in this case because I think that it’s going to be — a lot of people are going to be interested in what’s the makeup of the jury, and all just want to know about them. So, I’m wondering if you can talk about, what you think we can expect from this jury, as far as what it might look like and how they’ll be treated.
CERRA: There’s a lot of considerations with this particular jury. And before I even think about or talk about demographics, there is the really important issue of a neutral jury. Every person in the country or just about every person in the country has probably seen the video of George Floyd’s death. Now, the question is, have they already formed an opinion about it? That’s really what the judge and the attorneys are going to be looking for.
If a person has seen the video or read news articles or whatever, and they’ve already formed an opinion, then they’re not neutral and they’re not going to be able to sit on the jury. Now, that’s always an issue, that’s always something that attorneys consider. But with a case like this, it’s a global case in a sense. This was international news. I think it’s going to take a minimum of three weeks just to find enough people who either haven’t seen the video or haven’t read news articles, or they have read news articles, but they haven’t formed an opinion.
GERMUNDSON: When it comes to the demographic makeup of the jury, both the state prosecution and Chauvin’s defense will want sympathetic jurors. For example, Cerra said that if a prosecutor strikes or removes a juror because of their race, there’s a legal process called a Batson Challenge that the defense can use in response. The Batson Challenge is the defense’s way of telling the judge that the prosecution’s removal of a potential juror was inappropriate and based on race.
CERRA: Now that can be tricky because of course, a prosecutor will never say the words, “I am removing juror number six, because they are of a different race.” Those are words that will never escape their lips. But sometimes the facts surrounding that removal will lead a judge to say, “Yes, that’s an appropriate challenge and that Juror will stay in the pool,” or “No, the prosecution is allowed to remove that juror.” So that’s a Batson Challenge. I think that probably will come up a lot.
GERMUNDSON: The defense and prosecution will want to have a jury that will be more sympathetic to their side. For Chauvin’s defense, this may mean choosing jurors that fit a certain demographic, such as picking white jurors or more men than women. It can also come down to a person’s mindset.
CERRA: It could be not so much of a demographic, but more of an ideation, like this person is pro-police or at least accepting of the use of force by police. The defense will not want to have a person on the jury panel who says all cops are bad. That’s someone that defense is going to strike immediately. The prosecution wants somebody or a panel who is sympathetic to the victim, in this case, George Floyd. So, in this case, the prosecution is probably going to be looking for people of color, specifically Black people, people who may have, if not a negative opinion of police, people who are at least open to the concept that police can be violent or police can commit misconduct.
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CERRA: There are people in the world who think every use of force is lawful and justified and they would never convict a police officer of this kind of offense. There are people who think force is never, ever justified, and they would always convict the officer and both of those extremes are inappropriate for a neutral jury panel.
GERMUNDSON: What are you going to be looking out for as this trial goes on?
CERRA: I’m going to be looking for a couple of things. I think the medical piece of what caused George Floyd’s death is going to come out early. And I think that won’t actually be the focus of the trial. I think the medical examiner, Andrew Baker will testify, he’s extremely intelligent, very experienced. I think he will just quickly put that issue to rest as to how George Floyd died.
GERMUNDSON: Defense attorneys, in this case, have argued that the cause of George Floyd’s death wasn’t police restraint but from poor health.
CERRA: Then, it’s going to move on to a whole bunch of experts on the issue of reasonableness. Now, Derek Chauvin isn’t just being charged with murder; he’s being charged with murder as a police officer on duty effectuating his duties under the law.
GERMUNDSON: In the United States, police officers are allowed to use force, they’re even allowed to use deadly force. And because of that, an officer can only be found guilty if the use of force is deemed to be unreasonable under the circumstances.
CERRA: Now, that word “reasonable” is really tricky. I mean, you might have an idea of what reasonable means, I might have an idea of what reasonable means. It’s really a legal definition of what reasonable means, and if you look over the jury instructions, you will see there is no definition of reasonable. It’s going to be the prosecution’s experts versus the defense experts talking about what a reasonable officer would have done in those moments with George Floyd.
I‘m also really curious to see what both sides are going to say about Derek Chauvin’s training and his discipline or lack thereof. Both the prosecution and the defense have Commander Katie Blackwell on their witness list. She’s the commander who until very recently was in charge of training for the MPD. So, I expect that she would testify about the kind of training Derek Chauvin received regarding excited delirium, regarding maximal restraint technique, regarding just arrest in general, use of force in general, lethal force in general. And I think it’s interesting that both sides called her. Because you might, if you weren’t on trial, you might think that the training would very clearly say one thing or another thing, like he was clearly trained to do “X” and that leads to a conviction or that leads to exoneration.
GERMUNDSON: Figuring out whether or not Chauvin’s training led him to restrain Floyd in a reasonable or unreasonable manner isn’t that easy of a question, according to Cerra — since both the prosecution and the defense have called the testimony of the commander in charge of MPD’s training tactics.
Earlier this year, the prosecution sought to introduce six incidents where Derek Chauvin used excessive force while restraining someone as evidence. And in Late January, a judge ruled that the prosecution could present two of those incidents, with some conditions. The New York Times reported that, during his time as a police officer, Derek Chauvin received at least 22 complaints or internal investigations. To public knowledge, only one complaint resulted in discipline.
CERRA: The city got itself into a pickle and that they prefer to do what they call coaching versus a formal discipline and that keeps all kinds of disciplinary acts private.
I think it was six incidents within the past four years, leading up to George Floyd’s death. Derek Chauvin was not disciplined for any single one of those incidents. However, the attorney general, the prosecutor, is saying that all of those incidents were in fact excessive force and were not reasonable.
I think there was some internal discipline that happened maybe. But I expect that Derek Chauvin’s defense team will say, “Look, this is the amount of force he has used over and over and over again and very factually similar scenarios and he was never, ever disciplined for it.” So, he was never under the impression that it was wrong or inappropriate or unreasonable.
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GERMUNDSON: We wanted to learn more about how pre-trial publicity will impact this trial, so we spoke with Professor David Schultz, who teaches law at both Hamline University and the University of Minnesota. Here’s Minnesota Daily city reporter, Emalyn Muzzy.
EMALYN MUZZY: Do you know why they decided to hold this trial in Minneapolis?
DAVID SCHULTZ: Generally, prosecution wants to hold a case in the jurisdiction where it has occurred. I mean that’s the general rule in criminal law that if this had happened in Ramsey County, it should be in Ramsey County, et cetera, et cetera. But this case raises a really interesting question. There’s an incredibly old case from 1966 and it’s Maxwell v. Sheppard. It’s a U.S. Supreme Court case and it involves a really famous case for people who might be fans of older movies. There used to be a movie and an old television series called “The Fugitive.” It’s an incredibly old movie probably 25, 30 years old, the TV series dates from the sixties, but it’s based upon a real trial of a doctor who was accused of killing his wife.
GERMUNDSON: Schultz said that Maxwell v. Sheppard is an example of a case that received a ton of pretrial publicity. Samuel Sheppard was on trial for the murder of his wife. There were cameras in the courtroom, loudspeakers and broadcasted results. And Sheppard was found guilty. But, later on, the Supreme Court overturned the conviction, saying the trial publicity interfered with the defendant’s right to a fair trial.
SCHULTZ: There was so much pre-trial publicity, so much publicity during the trial, that it was impossible to get a fair verdict. And this is a danger here, is that, arguably, the Derrick Chauvin-George Floyd trial is probably one of the most high profile trials, I can think of in Hennepin County in years, and it could be one of the most high profile trials in the United States this year. There’s no question about it because everybody has heard of George Floyd at this point across the world.
I can almost guarantee you if there is a guilty verdict in this case immediately one of the grounds for appeal from the defense is going to be that you couldn’t have gotten a fair trial because there was so much pre-trial publicity that getting a fair verdict was impossible. I said I can just guarantee you, that’s going to be one of the arguments that are being made. And this is a difficult task here because under the First Amendment the press and the people have a right to know.
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GERMUNDSON: Schultz said it’s difficult to prosecute police officers because of a combination of state and federally granted qualified immunities that protect government officials from being held personally liable for violating the constitution. Here’s reporter, Emalyn Muzzy again.
MUZZY: What are the other challenges besides just those that come from being a high-profile case?
SCHULTZ: It’s actually the attorney general bringing the case here. The attorney general in Minnesota almost never does criminal prosecutions and really has no experience in prosecuting police officers. It’s getting some assistance from those who’ve done it, but for even a prosecutor who’s seasoned, very experienced in terms of prosecuting police, these are very hard cases.
It’s a good question though. It is. This is something that I’ve thought about quite a bit because Derek Chauvin’s legal team is really good. He’s got some of the best legal talent, probably in the country and these are people who specialize in representing police officers. So the attorney general is up against an incredible, incredible legal team that is going to force the attorney general to prove absolutely everything.
GERMUNDSON: So, were these sort of laws created to protect officers?
SCHULTZ: My perspective, yes. Now not everybody is going to make that argument. I’ve written a lot on police qualified immunity. I used to teach a class at Hamline on police on civil and criminal liability for police officers.
The Supreme court has made it hard to go after police officers. And for the last 50 years, we’ve really lived with what, get tough on crime, war against drugs, et cetera, et cetera. And the law really does favor police officers. Now, some people might say, that’s good, they should. There’s going to be some people, obviously who are going to say the balance is tipped too far in the police officer’s direction.
GERMUNDSON: Though the defense team can file to appeal if Chauvin is found not guilty, there is still a possibility that Chauvin could face consequences post trial.
SCHULTZ: The federal government can still come in and prosecute him under civil rights laws. And so I would not be surprised. If the Biden justice department comes in and does something like that. So, this is a long way from being done in terms of Derek Chauvin, we’ve got probably months of trials, depending on what happens. Probably months of appeals if he’s found guilty. And even if acquitted, the feds can come in. And still charge them again.
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GERMUNDSON: Ahead of Chauvin’s trial, the City of Minneapolis has begun “fortifying” buildings, including police precincts, with concrete barriers. And National Guard members will begin patrolling the streets along with police officers. The live broadcast of a high-profile trial, such as this, has not been seen before in Minnesota and millions will likely be watching closely.
GERMUNDSON: Thanks to Emalyn Muzzy and Ethan Quezada for helping report this story.
OUTRO MUSIC
MEGAN PALMER: In other U news: the Chicano and Latino Studies department is celebrating its 50th anniversary; the Carlson School of Management is waiving its study abroad requirement for the time being; and a new seven-story apartment building will be built on the site of Hideaway and Cosmic Bean Dispensary in Dinkytown. We’ll see you next week.
Emalyn Muzzy contributed to this report.
