Derek Chauvin Was Convicted on Three Counts. But Will The Verdict Be Reversed on Appeal?
With three guilty verdicts rendered from the jury, many eyes now turn to two pressing questions: Can Chauvin successfully appeal the verdict, and if not how long a sentence is he likely to serve? I address the appeal question today, giving my best assessment (which I should add is certainly not a prognostication but rather is based on probabilities). I will address sentencing in a later post, as that will not happen for another eight weeks.
Chauvin will no doubt appeal the verdict, and his lawyers have sixty days to give notice of their intent to file one. There are several grounds they are likely to assert. These include that the jury pool was hopelessly tainted by the publicity around the case; that the $27 million settlement between the Floyd family and the city of Minneapolis, which was reached just two weeks before the criminal trial began and came down in the middle of jury selection, was prejudicial to their client; that events subsequent to the trial beginning should have resulted in a mistrial; and that the third degree murder charge is technically deficient.
In support of their argument over prejudicial media publicity around the trial, and no doubt setting themselves up for the appeal, his attorneys earlier submitted 3,972 pages filled with thousands of negative news reports about the George Floyd homicide. They will argue that Judge Cahill should have delayed the case or moved it to another venue because the jury pool was hopelessly tainted around that time in Minneapolis.
This approach isn’t likely to succeed. When Judge Cahill ruled against delaying or moving the trial to another location in the state, he noted that neither would make it any easier to seat an impartial jury. After all, this was one of the most public and scrutinized cases in the history of U.S. policing. His decision to hold the time and venue unchanged therefore was not prejudicial, at least compared to delaying or moving it out of Minneapolis. In support of this, the state will note that all 61 potential jurors questioned by both sides had already seen the tape or at least some of it. Realistically, the state will argue, there wasn’t anyone in Minnesota who could claim they hadn’t heard about it.
The $27 million settlement between the Floyd family and the city of Minneapolis was an additional and more controversial wrinkle. The city had called a news conference to announce it, likely for political reasons. There were emotional comments by Floyd’s brothers and Minneapolis Mayor Jacob Frey. Eric Nelson, who is Chauvin's lead lawyer, called the news “profoundly disturbing” to the defense. “By my count, this is the third highly prejudicial press leak or press release that has very suspicious timing, to say the least, and has an incredible propensity to taint a jury pool,” he told the court.
Judge Cahill directly addressed the $27 million settlement question, calling the timing of the news “unfortunate.” Importantly, he then recalled seven jurors seated the week before and asked if they had seen news of the settlement and whether it would affect their impartiality. “I wish city officials would stop talking about this case so much,” the judge said before resuming jury selection for the rest of the panel. “At the same time, I don't find any evil intent that they are trying to tamper with the criminal case.”
Neither the media frenzy nor the timing of the settlement news is likely to win the day on appeal. That is primarily because the standard of review that will be applied to Judge Cahill’s orders is a high one for the defense to overcome. In order to succeed on appeal, Chauvin would have to show that Cahill engaged in an “abuse of discretion,” or made a mistake that was clearly unreasonable or against the evidence. But trials are rarely moved within the state of Minnesota, and they aren’t usually delayed because of news that only theoretically might taint the jury pool. Further, it appears Judge Cahill took reasonable steps to ensure that news of the settlement did not affect the jurors already seated.
The defense will also argue that, after the trial got started, additional media attention rose to a frenzy following the killing of yet another Black motorist, Daunte Wright, just ten miles from where Chauvin murdered Floyd. That was prejudicial to their client, they will insist. Again, this argument isn’t likely to go anywhere. Police homicides occur regularly against the Black community and so, tragically, it isn’t so surprising or unusual that one even occurred during the trial and not far from the courthouse. (Indeed, another homicide by police in Columbus Ohio occurred against a Black teen within minutes of the verdict’s announcement). In other words, you can’t make the world stop for a trial, however horrible it is, so you shouldn’t declare a mistrial when it doesn’t. Similar incidents would only likely happen again, even just statistically speaking.
The defense will also likely argue that certain statements about the trial by politicians, like Rep. Maxine Waters and even President Joe Biden, were so prejudicial as to warrant a mistrial. Judge Cahill’s annoyance at Waters, who told a news reporter that protestors would have to “stay on the street” and “get more confrontational” if Chauvin were acquitted, was evident. He even admitted to defense attorneys that Waters “may have given you something on appeal that may result in this whole trial being overturned,” even as he denied their motion for a mistrial. “I wish elected officials would stop talking about this case, especially in a manner that is disrespectful to the rule of law and to the judicial branch and our function,” Judge Cahill later added. “I think if they want to give their opinions, they should do so in a respectful and in a manner that is consistent with their oath to the Constitution, to respect a coequal branch of government.” He then noted, importantly, “Their failure to do so, I think, is abhorrent, but I don’t think it’s prejudiced us with additional material that would prejudice this jury.” (In her own defense, Waters says her statements were misconstrued and that her remark about being “confrontational” was in regard to changing the justice system in the U.S.)
Emotional statements by politicians are not unusual and haven’t traditionally been grounds for a mistrial (just imagine if they were…). And in President Joe Biden’s case, the jury was already in deliberations and without access to any media. In any event, aside from bearing the burden to show that Judge Cahill abused his discretion in not calling for a mistrial, Chauvin’s lawyers would need to present evidence that a juror was actually impacted by these statements, which would be hard to demonstrate here given that the jurors were instructed not to watch media and not to check their cell phones during the trial. Mere speculation about what they might have heard would not suffice.
Finally, Chauvin’s attorneys likely will argue that the third degree murder charge should not have been included because the text of the law states that he must have committed an act “eminently dangerous to others” (plural) which resulted in the death of Floyd. Here, they will claim, the act was committed against one other individual who was the same person who died and, they assert, that is not the intent of the statute. This issue was already litigated before the court of appeal and the third degree murder charge was reinstated, but the Minnesota Supreme Court has not weighed in on it. At first blush, this technical argument seems a stretch by the defense, but even if they are right, it would be an academic exercise because it wouldn’t overturn the second degree murder conviction, which carries greater possible penalties and in any event would run concurrently with the third degree murder sentence. But more on that in my sentencing post later this week.
My own conclusion, at least based on what we know are the probable grounds for appeal, is that the convictions will stand and Chauvin will not walk free or be retried. The real question of justice will come down to his sentencing. There is a great deal of confusion and misinformation out there, so look to my piece later this week for some clarity on that question.