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.
Top line: Not a single juror was seated today, leaving the number seated at nine. A total of fourteen are required, for 12 jurors and 2 alternates.
One of the outstanding issues in the jury selection process in this case so far is that the measure of what constitutes unacceptable bias seems so overwhelmingly in favor of the prosecution.
One could imagine a standard that favored the defense. For example, if the standard were that any prospective juror who has so much as a hint of bias towards the defendant were excluded for cause, such that one could be certain the jury was as free as bias as possible, obviously that would be a standard that favored the defense.
In other words, if a juror expressed in their juror questionnaire words to the effect that they cannot unsee what they saw in the video, or that the video is seared in their mind, or that Chauvin murdered Floyd, or that it would be extremely hard for them to be unbiased, fair, and impartial—one can imagine a court in which each and every one of these jurors is excused for cause, no matter what else they say to the contrary afterwards.
Instead, the standard applied to date has been essentially the opposite. No matter how firmly a prospective juror has expressed bias towards defendant Chauvin in their juror questionnaire, so long as once in court they are willing to say the “magic words” of “I will be fair and impartial,” it seems that Judge Cahill will refuse to dismiss that juror for cause.
As a result, the defense has been obliged to burn through 11 of its 15 peremptory strikes before the court seats a 10th juror, in order to prevent these explicitly biased (via questionnaire) jurors from being seated. In contrast, the state has only burned through 5 of 9 strikes.
Today, after the prosecution had to burn through two peremptory challenges to exclude two more patently biased jurors–#67 and #69 — who were willing to “say the magic words” in court, the defense finally complained to Judge Cahill.
In effect the defense argument was exactly as I’ve just stated—that it seemed jurors were acceptable to the court, and could be excluded only by peremptory challenge, no matter how blatant their bias on their juror questionnaire, so long as they were simply willing to mouth the “magic words” in court during voir dire.
Indeed, the defense urged the court to simply presume bias on the part of any prospective juror substantially exposed to media reports on the case, and make the standard that the juror essentially has to demonstrate lack of bias.
In fact, the defense requested that the judge return them the strike used on #69, just struck, because of the utter lack of credibility in their “magic words.”
Naturally, the prosecution argued that the defense was completely over-reacting, and that the only standard that mattered was, in effect, the magic words. This was admittedly a high publicity case, the video was admittedly disturbing to anyone who viewed it, most everyone will have formed an opinion, and the legal standard was only whether jurors under oath were willing to state they would be fair and impartial—the magic words.
Judge Cahill appeared to take the criticism to heart, albeit only now after nine jurors had been seated and after the defense had used 11 of its 15 strikes, and after refusing to return to the defense the strike just used by the defense. He indicated, however, that he would be more amenable to defense challenges for cause on subsequent prospective jurors.
Really, it seems to me, a move in the right direction, but well after the barn door has been left open.
Here’s the video, about 10 minutes or so, of this exchange between Defense Counsel Nelson, Prosecutor Schleiter, and Judge Cahill. Unfortunately, the court had the microphone turned off for the start of this discussion, so it begins mid-sentence with Nelson.
Immediately after this discussion took place, voir dire moved on to prospective juror #71. It seems likely that Nelson timed his raising of this issue based on the questionnaire of #71, because he proved a quintessential example of a juror who professed profound bias in their juror questionnaire, only to repeatedly profess the “magic words” during voir dire in court.
The defense spent over an hour on voir dire of #71, until even Judge Cahill was frustrated with the “magic words” nonsense, and he ordered a short break in the proceedings.
Upon return from that break, he immediately granted the defense motion to dismiss #71 for cause, using the reasoning that the defense had laid out in its argument immediately preceding #71.
Here’s that voir dire of #71, with Judge Cahill’s rather frustrated commentary at the end:
The next prospective juror was #73, the last of the day.
#73 was a self-employed male in the real estate business. He frankly seemed a perfectly reasonable juror for this case, which meant of course that the state had to find a way to get rid of him.
The door to accomplish that revealed itself when #73 indicated that he had a friend who was a policeman, and an inclination to trust the word of a police officer more than he would trust the word of a bystander. That was enough for #73 to get dismissed for cause, despite his protestations that he could put that aside to be fair and impartial for the state. It seems that when the bias in question is against the state, a mere whiff is sufficient to dismiss for cause. (I’ll also note that this hyper-sensitivity to the prospect of jurors favoring police testimony is usually applied in favor of, not against, criminal defendants.)
I’ll note in passing that if the standard applied to #73 in favor of the state had conversely been applied to every other juror who expressed explicit bias against the defendant, virtually every juror who has come through voir dire so far would have been dismissed for cause.
Here’s the voir dire of #73:
And that’s all I have for all of you today.
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.]