(Power Line) — At the end of the motion hearing yesterday morning, defense counsel Eric Nelson expressed his grave concern over the effect of the city’s world-beating $27 million wrongful death settlement in the civil litigation resulting from the death of George Floyd. Nelson cited prejudicial comments made by Mayor Frey and the members of the city clowncil in support of the settlement. With seven jurors selected and released until the beginning of the trial proper on March 29, he complained of the settlement’s “suspicious timing” and “unavoidable headlines.”
Nelson accordingly moved for a continuance of proceedings scheduled for March 29, renewed his change of venue motion, and asked for further voir dire of the seven jurors on their possible exposure to news of the settlement. He also asked for extra peremptory strikes and immediate sequestration. “This should be the subject of a hearing,” Nelson argued, to be added to a hearing on the leak to the New York Times regarding settlement negotiations in Chauvin’s criminal case.
The last point follows from Tim Arango’s February 10 New York Times story. Defendants have filed a dismissal motion predicated on the possible violation of the court’s gag order that the story represents. I am not aware that any hearing has been scheduled on that motion.
In response, Steven Schleicher — one of the several attorneys contributing his services to the Chauvin prosecution — argued that the state had no control over the comments made by city officials. He argued further that the settlement was not coordinated by the state and that jurors have expressed their ability to set publicity aside.
Judge Cahill drily responded: “You would agree that it’s unfortunate.” The defense has “a legitimate concern,” he observed. The only motion he granted, however, was further voir dire of the seven jurors selected so far. As for the rest, he added, “Let’s wait to see if we have a problem.” As I’ve been saying right along, we have a problem, but I’m not sure the judicial system can mitigate it. Judge Cahill concluded his comments by taking the motion for a continuance under advisement. I think the same applies to the defense’s renewed motion for change of venue.
Juror number 51 illustrated one set of prejudice problems. She had inadvertently heard about the settlement over the weekend. She works in human resources and had a sophisticated understanding of the interplay between the civil and criminal litigation. She drove by the Third Precinct on her way to court that morning, she said, as well as past the no-go zone honoring George Floyd at 38th and Chicago. She has been exposed to so much, she said, she is leaning way over to one side. The settlement impacted her as well. She could perhaps be impartial in the case of the other three officers charged with Floyd’s death, but not in this one. So long, juror number 51.
Juror number 52 professed to be “a friendly, positive person.” He works in banking and coaches youth sports. He sounded to me like an extremely decent and reasonable man, but he has views that would have made me want to strike him. He believes that racial discrimination exists “well beyond what the media can report.” He thought that the other three officers should have intervened to stop Chauvin, as has just about every prospective juror, but he professed his ability to be impartial and follow the law as given. He wants to serve as a juror. He would love to be a part of “this historic case,” he said. A black male in his 30’s, he was the eighth juror seated in the case.
Juror number 54 expressed doubt that he could be impartial. A senior citizen who could have been excused as a matter of course by his age, he was excused for cause.
Juror number 55 struck me as dangerous for the defense. She is a white woman in her 50s who is an executive assistant at a health clinic. On the jury questionnaire she said she has a “somewhat negative” view of both Derek Chauvin and Black Lives Matter. She expressed concerns for her personal safety depending on “the end result.” The question, she said, is how others will perceive the verdict. I read her as a possible leader on the jury. Juror number 55 is the ninth juror seated in the case.
I thought we were on a roll, but no. Jurors number 59 and 62 were excused for cause. Fifty-nine is a school teacher. By my lights, he would probably have been out on that ground alone. He doubted he could grant Chauvin the presumption of innocence. “I’m almost sick to my stomach right now,” he said.
Juror number 62 channeled the concerns I have expressed here and elsewhere about the case. He noted that it would be difficult to confine the decision to the courtroom. He wonders if the safety of his family would be at risk if the outcome of the case were to go “a certain way.” That’s one way to put it. I’ll have to remember that one.
Juror number 60 doesn’t like controversy. He is an undergraduate who would like to go to law school. He doesn’t want to make anybody angry. He seemed to me to understand the intellectual environment he’s swimming in with great acuity. He perceives the college campus as liberal ground. He had no opinion of Chauvin’s conduct. He is also scared he might make the wrong decision in the case. I read him as a classic follower. He would have gone with the flow in deliberations. I thought Nelson wasted a peremptory strike to remove him from the jury panel.
Scott Johnson
Scott W. Johnson is a Minneapolis attorney who writes for Power Line and serves on the board of Alpha News.
