The Chauvin team’s attempts for a retrial are going nowhere

The trial of Derek Chauvin continues to generate headlines — weeks after the former Minneapolis police officer’s April 20 conviction of the murder of George Floyd.

This week the story is about juror number 52, who appears to have added considerable weight to Chauvin’s argument that his trial was not fair. Among Chauvin’s current motions is one asking the trial judge Peter Cahill to recall the entire jury for interrogation over possible juror misconduct. He may have a case.

Brandon Mitchell — juror number 52 — stepped forward to identify himself and make the media rounds. He is a 31-year-old black Minneapolis high school basketball coach. In a friendly interview with Minneapolis’s Star Tribune last week, Mitchell presented himself as having sat in judgment on Chauvin on behalf of black America.

‘I literally told myself…that if I was not a part of this jury, there would be no representation of me as an African American male,’ he told the Star Tribune. ‘And I felt like that representation was important. I told myself, “If I’m not going to be there, who’s going to represent us?”’

Actually, Mitchell was one of four black people to sit on the jury. One is a black woman. The two other black men are African immigrants. It’s a little hard to follow Mitchell’s train of thought. I would be surprised if Chauvin’s lawyer doesn’t specifically ask Judge Cahill to call Mitchell in for a hearing to flesh his perspective out and determine his truthfulness in the jury selection process as part of a so-called Schwartz hearing under Minnesota law to rule on possible juror misconduct.

Mitchell, it turns out, attended the event observing the anniversary of Martin Luther King’s march on Washington in the district this past August 28. This week a photo of Mitchell at the march turned up on social media featuring him wearing a t-shirt sporting the slogan ‘Get your knee off our necks’ and declaring ‘BLM’. The photograph suggests that Mitchell was an unlikely candidate to have served as an impartial juror in Chauvin’s case.

Despite (bad) appearances, I think there is less here than meets the eye. I covered the trial from jury selection through the verdict. My notes on Mitchell’s responses to Chauvin’s lawyer Eric Nelson during jury selection reflect Mitchell’s view of the case at that point. He wondered why officers didn’t interrupt Chauvin’s conduct before Floyd’s death. I think that was a fair question.

My notes further reflect Mitchell’s ‘very favorable view’ of Black Lives Matter and his statement supporting the view that racially discriminatory misconduct takes place ‘well beyond what the media can report’. Mitchell also stated during jury selection that he wanted to serve on the jury because he ‘would love to be a part of this historic case’.

If Mitchell’s previous statements didn’t raise a red flag for Nelson, I thought the last statement should have. Each of these statements is consistent with Mitchell’s t-shirt. I think Nelson exercised poor judgment accepting him as a juror on the case.

Chao Xiong quoted Mitchell on his attendance at the anniversary march in Washington in his Star Tribune story this week when the photo was posted online. Xiong quoted two questions on the juror questionnaire that all prospective jurors completed before jury selection at trial:

‘The first question asked, “Did you, or someone close to you, participate in any of the demonstrations or marches against police brutality that took place in Minneapolis after George Floyd’s death?”

‘The second asked, “Other than what you have already described above, have you, or anyone close to you, participated in protests about police use of force or police brutality?”’

Mitchell answered ‘no’ to these two questions in the juror questionnaire. Here is the relevant portion of Xiong’s story:

‘The event was “100 percent not” a march for Floyd, Mitchell said, adding, “It was directly related to MLK’s March on Washington from the ’60s… The date of the March on Washington is the date.’

‘The event included advocating for racial justice, increasing voter registration, pushing for a new version of the Voting Rights Act of 1965 and urging participation in the 2020 census.

‘It also focused on police use of force. Floyd’s brother and sister, Philonise and Bridgett Floyd, and family members of others who have been shot by police addressed the crowd. It served as a rallying point for the George Floyd Justice in Policing Act, a federal police reform bill.’

So did Mitchell lie on the questionnaire or in jury selection? I don’t think so. If Mitchell is called in for a Schwartz hearing, I think Judge Cahill is extremely unlikely to find that Mitchell lied and/or to find any misrepresentation to be the result of an innocent misunderstanding.

With a few exceptions Nelson’s new trial motion appears to be pro forma. Two such exceptions are raised by the court’s denial of Chauvin’s motion for a change of venue and the underlying problem of pretrial publicity, issues I discussed in my Spectator article on the verdict. Fans of popular culture will be pleased to know that Nelson cites the hoary Supreme Court case involving Cleveland osteopath Sam Sheppard in support of his new trial motion on these issues. Sheppard was of course the inspiration for the television series and subsequent movie The Fugitive.

These appear to be the strongest grounds for a new trial made on Chauvin’s behalf, though it is hard to assess them on the merits before memoranda of law setting forth the facts and the arguments have been filed. However, both issues have previously been litigated by the parties and rejected or dealt with by Judge Cahill. The prospects for success must be deemed extremely low.