Derek Chauvin trial preview

Ellison’s office employs more than 130 attorneys. Despite the huge staff of attorneys at his disposal, Ellison has called in reinforcements to assist them.

Ex-Minneapolis officer Derek Chauvin appears in court Monday morning in Hennepin County. (Reuters/YouTube)

(Power Line) — Former Minneapolis police officer Derek Chauvin is charged with the murder of George Floyd last year on May 25. Floyd’s death set off ten days or ten months that shook the world. These notes are intended as a preview of the trial. Beginning with jury selection, the trial begins today in Hennepin County District Court before Judge Peter Cahill. John Hinderaker offered a good overview in “A city prepares for a trial.”

The arrangements for press coverage are unusual. They are set forth in this Feb. 16 press release. Only two reporters at a time are to be allowed into the courtroom itself. They will serve as pool reporters.

The rest of us have been assigned seats with access to the video livestream in the county’s Media Business Center across the street from the courthouse. I have also expressed interest in access to the livestream of the trial outside the media and business center, but it is not at all clear to me who else will have access to it. We await further announcements from the court.

The court has set up a page for the Chauvin case here. All public filings in the case by the parties or the court are posted on that page. Separate pages have been set up for the three former officers also charged with responsibility for Floyd’s death. The separate pages for their cases are accessible on Chauvin’s page.

The charges against Chauvin were brought in a lynch mob atmosphere led by Gov. Tim Walz, Attorney General Keith Ellison, and Minneapolis Mayor Jacob Frey. They publicly pronounced Chauvin and the other officers guilty many times over last spring and summer.

Those of us who took up law and/or journalism may have been inspired by Atticus Finch or John Adams or Woodward and Bernstein, but when the time came to face down the mob and talk back to the authorities, the lawyers and the press took their places in the crowd.

Take the Star Tribune, for example. As the lynch mob formed and the city burned, the cat had their tongue. Star Tribune commentary editor D.J. Tice wrote an excellent column on “the challenge of a fair trial for Chauvin.” The column was published on February 20 — a little late in the game. And it stands more or less alone. (I raised the fair trial issue last year in posts including “Random thoughts on the Floyd case.”)

At the behest of the mob, Gov. Walz lifted responsibility for the prosecution from the office of the Hennepin County Attorney and assigned it to Minnesota Attorney General Keith Ellison. Ellison has named Assistant Attorney General Matthew Frank to lead the prosecution.

Ellison’s office employs more than 130 attorneys. Despite the huge staff of attorneys at his disposal, Ellison has called in reinforcements to assist them.

This past June Ellison announced the appointment of four outside attorneys in private practice or serving as corporate counsel as special assistants on the case (press release here). The special assistants include Steve Schleicher of Maslon LLP, Jerry Blackwell of Blackwell Burke, both of Minneapolis, and Lola Velázquez-Aguilu, lead counsel for brain modulation at Medtronic in Fridley.

The fourth outside attorney is the star of the group: former Obama administration acting Solicitor General Neal Katyal, now in private practice at Hogan Lovells in Washington, D.C.

Curious about the arrangements for their appointment, I filed a Data Practices Act request with Ellison’s office seeking the relevant documents. Deputy Attorney General David Voigt produced a set of repetitive and partly redacted documents in response to my request under cover of a letter dated Dec. 1, 2020.

In his (partly redacted) June 12 memo naming the attorneys he wanted deputized, Ellison wrote that “[i]n terms of our trial team [redacted], I propose we include a team that brings us the best of all our strengths … I want to lick [sic] this down by Wednesday, June 17.” Naming the first three attorneys above, Ellison rendered Schleicher’s name as “Schlisher.” He touted Lola Velasquez-Aguilu’s experience as “former federal prosecutors [sic], good trial lawyer, former federal prosecutor.” He had a lot on his mind.

Heavily redacted notes of a June 17 office meeting reflect that Ellison wanted “a pool of trial lawyers with diverse skills” and that Ellison’s proposed pool of outside attorneys was “diverse.”

Katyal came later and, of the four special assistants featured in Ellison’s press release, only Katyal has been visible so far. As of this month Hogan Lovells associate attorneys Harrison Gray Kilgore and Victoria Joseph have been granted leave to appear on behalf of the state in the case as well.

All the outside attorneys named in the case are serving Ellison’s office pro bono. Katyal’s going rate in intellectual property cases is something like $1750 an hour.

Chauvin is represented by criminal defense attorney Eric Nelson. So far as I am aware, he has no outside help, pro bono or otherwise. If you’re looking for Atticus Finch in the case, Nelson will have to serve.

Judge Cahill is a former assistant Hennepin County attorney and a former criminal defense attorney. I have been favorably impressed with his rulings so far.

The state wanted all four officers tried together. Judge Cahill has separated the case against the three other officers for trial this summer. The state’s interlocutory appeal of Cahill’s order was dismissed.

Cahill dismissed the third-degree “depraved mind” murder charge against Chauvin. When the Minnesota Court of Appeals recently affirmed former Minneapolis police officer Mohamed Noor’s conviction on this charge, it cracked the door open to the charge in this case. Cahill ruled against the state’s motion seeking to reinstate the third-degree charge.

On Friday the Minnesota Court of Appeals ruled that Judge Cahill had improperly failed to treat its decision in the Noor case as binding precedent. It all but ordered Judge Cahill to reinstate the third-degree murder charge against Chauvin. The Court of Appeals decision is posted online here.

Attorneys for Noor, however, also intend to file a petition seeking review of the Court of Appeals ruling in that case with the Minnesota Supreme Court. It is not yet clear how the charge will be handled at trial.

By assignment of Gov. Walz, Ellison has sidelined and displaced the office of the Hennepin County Attorney in the case. Assistant Hennepin County Attorney Amy Sweasy may nevertheless be the most talented attorney in the state in the prosecution of police officers. She obtained Noor’s conviction in 2019.

Ellison made his name around town as a Nation of Islam hustler supporting the defendants ultimately convicted for the murder of Minneapolis police officer Jerry Haaf in 1992. Among other things, Ellison spoke at a demonstration for one of the defendants during the trial in February 1993. Ellison led the crowd assembled at the courthouse in a chant that was ominous in the context of Haaf’s cold-blooded murder: “We don’t get no justice, you don’t get no peace.” Ellison’s career seems to be closing a circle in this case.

The court and environs are to be protected by officers and troops numbering in the thousands. “Protesters” promise to do their thing. The prospect of a fair trial in this atmosphere seems incredibly remote. We remain one step removed from the territory of The Ox-Bow Incident.

Editor’s note: Scott Johnson is a board member for Alpha News and will be covering the case for Power Line. This article has been lightly edited to reflect new developments in the case.


Scott Johnson
 | Website

Scott W. Johnson is a Minneapolis attorney who writes for Power Line and serves on the board of Alpha News.