Chauvin Pre-trial Day 4:  Sixth Juror Seated, and 3rd Degree Murder Reinstated

Welcome to our ongoing coverage of the Minnesota murder trial of Derek Chauvin, over the in-custody death of George Floyd.  I am Attorney Andrew Branca for Law of Self Defense, providing guest commentary and analysis of this trial for Legal Insurrection.

As a reminder, I am “LIVE Parlering” the trial in real-time over at my Parler account, which you can find using my Parler handle:  @LawofSelfDefense.

3rd Degree Murder Charge Reinstated Against Chauvin

This morning the trial court reinstated the 3rd degree murder charge against Chauvin, adding it to the existing charges of 2nd degree murder and 2nd degree manslaughter.  The 3rd degree murder charge had, in fact, been the initial murder charge brought against Chauvin when he was first charged.

As a reminder, here’s the relevant part of the 3rd degree murder statute, § 609.205. Manslaughter in the second degree:

A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $ 20,000, or both:

(1) by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another;

The 3rd degree murder charge was then dismissed by Judge Cahill under then-existing law that limited 3rd degree murder to situations involving a general danger to the public, and not to a specific danger to an individual (e.g., in this case, only to Floyd). (In response, the state then charged Chauvin with 2nd degree murder, in its place.)

Since that time, the Minnesota court of appeals decided in the Noor decision to change Minnesota law to allow 3rd degree murder to apply even where the danger was to only an individual, and since then the state prosecutors have been arguing to have 3rd degree murder recharged against Chauvin.

This morning, Judge Cahill did exactly that.

Sixth Jury Seated & State Burns Another Peremptory Challenge

This morning’s voir dire worked through four prospective jurors:  #31, #36, #37, and #38.  (A fifth jury, #33, was dismissed for cause without even being questioned, based on age and highly limited English language skills.)

Prospective juror #31 was quickly dismissed for cause after a brief in camera (meaning, off microphone) review, so we don’t know why that occurred, but that did away with #33.

Prospective juror #36 is a male described as a route driver.  He was acceptable to both the defense and the state, and was seated as a juror.  More on him in a moment.

Prospective juror #37 was a female single-mother who described an extremely emotional response to the video of Floyd’s death—she told the court that cried while viewing it and hearing Floyd call out to his mother—and who repeatedly stated that she would be unable to “unsee” that video.  She also stated that she would be unhappy with a not guilty verdict.

Over the state’s objections—they thought she would make a perfectly fine, fair and impartial, juror—Judge Cahill ultimately dismissed #37 for cause, so the defense was not obliged to burn a peremptory challenge here.

Prospective juror #38 was a male business owner who lived outside the city of Minneapolis.  Much like #29 yesterday, the female lawyer, he indicated that he would arrive at a verdict based on evidence and reason.  He also indicated a somewhat favorable view of police, and a somewhat unfavorable view of Black Lives Matter in the context of the riots, arson, and looting in Minneapolis.  He indicated he though BLM probably had good intentions but was perhaps highjacked by others intent on violence. He was acceptable to the defense but he was struck by the state using it’s fourth peremptory challenge. This leaves the state with five remaining peremptory challenges.

Juror #36 Seated

Juror #36, a male route driver, described his response to being called to this case as mind-blowing, given the magnitude of the case. He described himself as a family man, outgoing, a sports fan.

He indicated that he could set aside his current opinions and arrive at a fair and impartial verdict based on the evidence shown in court and the instructions given by the judge, even if his believed the law on which he was instructed to be other than what he might prefer.  He affirmed he would not arrive at a decision until the end of the trial, needing to “hear every detail.”

Asked if he was willing to stand by what he believed of the evidence, or was prone to be accommodating to achieve consensus, #36 indicated he was willing to stand by his principles.

Juror #36, however, had also drawn some definite opinions about the video that he appeared to be very reluctant to let go.  For example, in his juror questionnaire he described the video by writing:

“When Floyd was on floor, Chauvin kneeling on neck the entire time, Floyd desperately screaming that he couldn’t breath, while other officers just let it happen, and bystanders screaming at Chauvin to get off his neck because he was killing him.”

When pressed on this description by the defense which characterized this as opinion, #36 responded:

“I just wrote what I saw. That’s what it was. Everyone will see that [Floyd] was desperate.”

Juror #36 also wrote in his questionnaire:

“There was no reason for Chauvin to kneel on Floyd’s neck for that long, impression of him just showing off his authority.”

When pressed if he had already formed an opinion of Chauvin’s guilt, #36 said he had, but that he was willing to consider all the evidence and witnesses.

Juror #36 had previous interaction with police when he had a car stolen, and he described that experience as favorable.

He also agreed with the sentiment, phrased by defense counsel Nelson, that one should prefer to let 10 guilty people go free than that 1 innocent person be convicted.

Interestingly, when being questioned by Prosecutor Schleiter, it was revealed that #36 had written in his juror questionnaire that none of the Floyd event needed to happen if Floyd had simply complied with police:

He did concede, however, that just because Floyd may have been non-compliant at the start did not necessarily excuse what happened later.

Finally, #36 somewhat disagreed that the criminal justice system was biased against blacks and minorities.  (Perhaps worth noting that it sounded to my admittedly untrained ear as if #36 had a slight Hispanic accent.)

Here’s the video of the voir dire of #36 (as usual, dead space deleted, otherwise complete):

And that’s it for this morning’s events in Minnesota v. Chauvin!  We’ll continue to cover the case live on Parler this afternoon, and plan on an end-of day blog post this evening to share those later events with you.

Until next time, stay safe!


Attorney Andrew F. Branca

Law of Self Defense LLC

Attorney Andrew F. Branca’s legal practice has specialized exclusively in use-of-force law for thirty years.  Andrew provides use-of-force legal consultancy services to attorneys across the country, as well as near-daily use-of-force law insight, expertise, and education to lawyers and non-lawyers alike in the form of blog posts, video, and podcasts, through the Law of Self Defense Membership service.  If this kind of content is of interest to you, try out our two-week Membership trial for a mere 99 cents, with a 200% no-question- asked money-back guarantee, here:  Law of Self Defense Membership Trial.

[Featured image is a screen capture from video of today’s court proceedings in MN v. Chauvin.]



4 thoughts on “Chauvin Pre-trial Day 4:  Sixth Juror Seated, and 3rd Degree Murder Reinstated”

  1. Third degree murder charge reinstated. What happens if Chauvin is found not guilty of 2nd degree murder and manslaughter, but convicted of third degree murder and the Supreme Court then finds that is was error to reinstate the third degree murder charge?

        1. Attorney Andrew Branca

          Double jeopardy applies to any charges on which the jury has arrived at a not guilty verdict, so no re-trial on those. (Sometimes double jeopardy protection is triggered sooner, but that gets rather technical.)

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