Defense attorney Eric Nelson, representing the former Minneapolis police officer Derek Chauvin, asked the judge Monday, to delay the trial because the announcement last Friday of a record $27m settlement for Floyd’s family could make a fair trial impossible. Nelson followed this up with a statement saying he would be looking into renewing his previously unsuccessful motion to move Chauvin’s trial to another city as well.

The timing of Friday’s civil settlement announcement when the criminal trial is still going through jury selection, was unprecedented. In the OJ Simpson trial, for example, the civil trial occurred years following the criminal case. Nelson said in court Monday, “I am gravely concerned with the news that broke on Friday that has incredible potential to taint the jury pool.

Hennepin County Judge Peter Cahill presides over pretrial motions, prior to continuing jury selection, Monday in the trial of former Minneapolis police officer Derek Chauvin, at the Hennepin County Courthouse in Minneapolis/Photo: Court TV

The Judge was also frustrated, stating I wish city officials would stop talking about this case so much.” Though he followed this up by acknowledging that he did not “find any evil intent that they are trying to tamper with the criminal case.” He then asked the prosecution whether they agreed that the timing of the city’s $27 million settlement and corresponding reporting was “unfortunate.” Matthew Frank for the Prosecution, said, “It’s certainly not my preference, your honor. I don’t even know which way that cuts. If that cuts for us if that cuts against us.” The Judge said he would recall the seven jurors seated last week to ask them if they had seen news of the settlement, and whether it would affect their impartiality.

Judge Cahill questioned the seven jurors over Zoom on Wednesday about how they felt their exposure to news of the civil settlement would affect their impartiality. A male Hispanic juror in his 20s and a white male juror in his 30s, both said they were shocked and impacted by the announcement, particularly the high amount. The Judge excused them as a result and is due to rule on the delay, Friday.

$27 Million Settlement

The settlement came about as a result of a federal wrongful-death lawsuit filed by Floyd’s family against Chauvin and the city of Minneapolis last year. The news conference organized to announce the settlement, had Floyd’s brothers and Mayor Jacob Frey making emotional statements. Floyd’s family’s attorney Ben Crump said was the biggest pretrial settlement ever for a civil rights claim.

In Monday’s proceeding, Chauvin’s lawyer, Nelson, pointed out that Minnesota attorney general Keith Ellison’s son, Jeremiah, works on the city council board that unanimously approved the settlement. Nelson emphasized that he was not making accusations. In response, former US Congressman, and current Minnesota Attorney General Keith Ellison leading the prosecution team, stopped by Nelson’s desk during a break and asked: “Is there anything else anyone would like to not accuse me of?” Nelson did not reply. Questions about the timing of the settlement were deferred by Mayor Frey of Minneapolis to city attorney Jim Rowader, who declined to comment. Prosecutor Steve Schleicher then said the state had no control over Major Frey and the city council.

Judge Cahill has agreed to give consideration to the defense’s request for a delay but did not comment on a potential venue change. In an earlier pre-trial motion, he denied a request to move the trial, saying coverage of Floyd’s death was so pervasive “no corner of the State of Minnesota has been shielded from pretrial publicity.” Cahill wrote, “because of that pervasive media coverage, a change of venue is unlikely to cure the taint of potential prejudicial pretrial publicity.”  

Moving the trial away from Minneapolis to a more rural area of the state could affect who would constitute the jury. The names of the jurors are to be kept confidential. Seven of the twelve and two alternatives have been picked. Two of which are African American or Latino, two women, three men. Presently, the jurors represent a slightly higher than average ratio in the category of race for a predominantly white state. It also skews young.

Status of Proceedings

Photo: YouTube Screenshot from the DerShow

Judge Cahill also decided last week he would approve the inclusion of the third-degree murder charge, meaning Chauvin faces three counts: third-degree murder, second-degree murder and second-degree manslaughter. Legal expert Alan Dershowitz has questioned this inclusion because, to him Chauvin’s actions do not meet the standard of the murder charges, because murder or homicide requires “unlawful killing of a human being with malice or forethought.” Whereas, manslaughter, is where you commit murder without malice or forethought. These definitions are also contained within the classic, essential guide for lawyers: Garner’s Dictionary of Legal Usage.

Legal statutes run on the idea that you have different levels of culpability depending on differing levels of criminal intent.  The rule of lenity, (or rule of strict construction) is a principle of criminal statutory interpretation that also requires a court to apply any unclear or ambiguous law in the manner most favorable to the defendant. This would work in Chauvin’s favor. Third-degree murder is when behavior recklessly dangerous to others, for example, shooting at a crowd. Second-degree murder is when you are committing such a dangerous felony that you can be held responsible at a higher level when a death takes place. While second-degree manslaughter is when you are behaving recklessly dangerously to just one person. It was over the use of the word “others” in the third-degree charge which the appeals courts interpreted as applicable in Chauvin’s case. Given that the Minnesota Supreme Court did not make a ruling on the appeals court interpretation, the possibility is held open that even if Chauvin is found guilty on all three counts, the Supreme Court may throw out the inclusion of the second-and third-degree murder on appeal, if it agrees the prosecution overcharged.

Robert Barnes on Viva Frei/Photo via YouTube Screenshot

Evidentiary rulings last week, also decided that nothing about the settlement will be presented in court, nothing about George Floyd’s past, almost nothing about Chauvin’s past. The judge will rule later this week on whether to allow evidence from Floyd’s prior arrest in 2019. The prosecution had sought to include evidence of people warning Chauvin about the severity of his actions at the time: a firewoman who alerted him, an MMA instructor on the scene, along with other people and police officers who warned Chauvin about the consequences of his actions. The judge struck these for being opinion, or inflammatory. Though the narrative of the prosecution’s case is still likely to follow this line. Legal commentator Robert Barnes, contends that the prosecution is going to great lengthens to get a conviction, and for them a win in the court of public opinion. Doing so by not only bringing as many charges as possible but also by setting up a narrative to be presented. 

Opening arguments commence on March 29.