(Power Line) — Late Wednesday the Minnesota Court of Appeals issued its final judgment on the interlocutory appeal of Judge Cahill’s order denying reinstatement of the third-degree murder charge against Derek Chauvin. Under the Court of Appeals decision, Judge Cahill was to apply the Court of Appeals decision in the Noor case as binding precedent. He heard argument on the reinstatement issue from both sides first thing Thursday morning and granted the prosecution’s motion to reinstate the charge.
Please note, however, that the viability of the charge as a matter of law remains subject to a future ruling by the Minnesota Supreme Court in the Noor case later this year. Minnesota Attorney General Keith Ellison omits any note of this wrinkle in his press release on the reinstatement of the charge.
Defense counsel Eric Nelson has an all-star team of attorneys arrayed against him in this case. Former Obama administration acting Solicitor General Neal Katyal argued the reinstatement issue via Zoom on behalf of the prosecution. Katyal is contributing his services to the prosecution, as is Maslon partner Steve Schleicher and Blackwell Burke partner Jerry Blackwell. Assistant Attorney General Matthew Frank will apparently lead the trial team in court with their assistance and that of another attorney or two from the Attorney General’s office.
The set-up reminds me of The Verdict, where a team of corporate lawyers works to crush Frank Galvin (Paul Newman) and his client. I always thought that aspect of the film was unrealistic, but here is something like a real-life version with the polarity of popular sympathies reversed.
As jury selection made clear again yesterday, Derek Chauvin is generally a hated figure among the pool of potential jurors. Everyone has seen the video. Everyone hates his face. That is one problem Paul Newman didn’t have to contend with in The Verdict.
Which raises another point. As each panel of prospective jurors is brought in, Judge Cahill has the attorneys introduce themselves. Christina Marinkakis has been introduced several times as part of the prosecution team. I thought she was an attorney or legal assistant like the others, but no. She is a jury consultant. I seriously doubt that she is contributing her services to the state, which is sparing no expense to convict Chauvin and his former colleagues.
The attorneys examined six prospective jurors yesterday, yielding one — juror number 36 — whom I had down in my notes as a difficult juror for the defense. According to the responses on his juror questionnaire, his opinion of Chauvin is “very negative.” Having viewed the video, he thought Chauvin was just flaunting his authority in holding George Floyd down. However, he wasn’t enthusiastic about the riots that followed Floyd’s death. He believes the police are “here to help us.” He wants to see the big picture in the case. He professed to understand that he doesn’t yet have it. This is about as good as it’s going to get for Chauvin before the prosecution exercises a peremptory strike (as Schleicher did on juror number 38).
Judge Cahill adjourned before the scheduled time of 4:30 when juror number 41 cut to the chase at the end of the day. Taking her seat for voir dire, she stated that she wanted to amend one of her answers on the questionnaire. In light of the video, she had concluded that she could not be an impartial juror. Floyd’s death, she said, has impacted her life. She reiterated that she could not serve as a fair and impartial juror in the case. Schleicher tried without success to rehabilitate her. Judge Cahill excused her for cause and announced we would resume this morning at 9:00 a.m. (Central).
Attorney Andrew Branca is covering the case for Legal Insurrection. His colorful take on yesterday’s proceedings is here. In short, Judge Cahill struck jurors 31, 37, and 43 for cause. Nelson used peremptory challenges to strike jurors 39 and 40 (a music teacher whom I had noted as “a nightmare for the defense”).
Judge Cahill noted that juror 43 responded to every question on the questionnaire with the answer “No English.” He also failed to return the form stating his qualifications — citizenship and residence — to serve as a juror. I think juror 43 is, as they say, undocumented, but Minneapolis is a sanctuary city. Juror 43 will remain free to pursue other interests during the Chauvin trial.
When Schleicher made a Batson challenge to Nelson’s peremptory strike of juror 39 — I had him down in my notes as “tough for the defense” — Judge Cahill ruled that Schleicher had not even made out a prima facie case supporting the challenge. He added that three of the six jurors seated so far identify as white, one as multiracial, one as Hispanic and one as black.
Yesterday I included the FOX News video of Tucker Carlson’s overview of the case in my update on day 3. I was invited to comment briefly at the end of the segment. In case you may be interested, Rose Williams covered the segment for Alpha News and dug up the tweets below with video of my comments.
Tucker Carlson & @scottwjohnson Discussing The Mob Factor In The Derek Chauvin Trial pic.twitter.com/Sy9pn7FSV7
— The Columbia Bugle 🇺🇸 (@ColumbiaBugle) March 11, 2021
Scott Johnson
Scott W. Johnson is a Minneapolis attorney who writes for Power Line and serves on the board of Alpha News.
