Welcome to today’s Law of Self Defense Members-only content! I am, of course, Attorney Andrew Branca, for Law of Self Defense.
Today I’d like to share with you the motion filed today by Attorney Eric Nelson, defense counsel for Derek Chauvin, seeking a new trial on a variety of grounds. That motion is embedded below.
The motion for a new trial is based on a number of specified grounds, and also explicitly notes that these are not the exclusive grounds justifying a new trial.
Among the grounds enumerated are:
- The failure of the court to allow a change of venue.
- The failure of the court to recognize that pre-trial publicity made a fair trial impossible.
- The failure of the court to sequester the jury for the duration of the trial.
- The State’s pervasive prosecutorial misconduct.
- The failure of the court to order Floyd’s purported drug dealer Morries Hall, present with Floyd at the time of his arrest, to testify.
- The claim that the court improperly instructed the jury on second-degree unintentional murder.
- The failure of the court to prevent the State from presenting prejudicial cumulative evidence.
- The failure of the court to prevent the State’s leading questioning of their witnesses.
- The failure of the court to not require a record to be made of the many sidebars.
Further, the defense moved for what’s called a Schwartz hearing, where the verdict could be impeached (shown to be invalid) on the grounds of jury misconduct. This hearing would involve direct questioning of the jurors, usually by the judge with defense counsel and prosecutors in attendance but not directly participating in this questioning.
Presumably this jury misconduct claim is based upon recent revelations that juror #52, Brandon Mitchell, shown in the feature image, concealed his activist impartiality, including participation at George Floyd protests, from the court during his voir dire (jury selection).
That’s all we really know at the moment, but you can be sure I’ll keep the Law of Self Defense community informed as things progress, and I’ll address many of the grounds cited in this motion, especially the jury misconduct issue, in a more comprehensive post, video, and podcast, tomorrow.
As promised, here’s Attorney Nelson’s motion:
Until next time:
Remember
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Stay safe!
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
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Surprised the defense did not renew its objection to the third degree murder charge. This charge was clearly plain error. The statute makes it plain that the conduct must be dangerous to “others” and case law makes it plain that the conduct must be dangerous to “others.” There is no new case law to the contrary. The case cited by the prosecution is distinguished from this case in that the conduct which was directed at the homicide victim in that case was in fact dangerous to others, and the court’s opinion was that because the conduct charged was dangerous to others the charge was not improper. In the Chauvin case the conduct which was directed at the homicide victim was not dangerous to anyone other than the homicide victim. and as a result the charge failed to charge an essential element of the offense of third degree murder.
I concur with your analysis, but the legal “experts” involved have taken a dumber view of the law. Just another reason why it’s so treacherous to place our lives in their hands.
I’m most interested in this one: “The claim that the court improperly instructed the jury on second-degree unintentional murder.” Not that I think its the most likely to succeed, I just want some analysis on this. I thought defense/prosecution and judge pretty much agreed all aspects of instructions were OK, even though the judge pretty much took the states version word for word.
There is no way to analyze the defendant’s claim that the court improperly instructed the jury on second degree murder until you know the specifics of the defendant’s claim. You can analyze the instructions though, and in my opinion the court committed plain error by even submitting a second degree murder instruction to the jury at all because there was no evidence in the record to establish all the elements of the crime of murder, and the instruction given did not even instruct the jury on what all the essential elements of the crime of murder were that the prosecution was required to prove beyond a reasonable doubt. That violated the defendants constitutional right to equal protection and due process of law.
I myself am not done looking that this issue closely, but I would caution that the “flavor” of second-degree murder at issue here is really not “murder” at all, in the traditional sense. It’s really just manslaughter, a criminally reckless killing. In most states it would be labelled just that, manslaughter, not murder.
The flavor of second degree murder here is second degree felony murder under Missouri law, and I believe it is common law murder under the common law. Blackstone said: “And if one intends to do another felony, and undesignedly kills another man, this is also murder.” The malice aforethought necessary to make the killing murder is expressed by the intent to do the other felony.
The thing is, a strict liability felony offense based on a mere misdemeanor offense is not constitutionally sufficient to serve as a predicate felony for felony murder, no felonious intent has been proven. Both the murder charges in this case, the second degree and the third degree murder charges, are not supported by evidence, the prosecutor is just trying to make an unconstitutional end run around the legal requirement that he prove malice aforethought beyond a reasonable doubt to convict Chauvin of murder. If Chauvin unlawfully intentionally caused George Floyd serious bodily injury that resulted in his death, or if he committed an eminently dangerous act directed at George Floyd that resulted in his death, then the proper charge in both cases is conventional murder.
Guess I should have said: “unlawfully committed an eminently dangerous act directed at George Floyd that resulted in his death,”.