Derek Chauvin Convicted — but What Comes Next? By Andrew C. McCarthy
https://www.nationalreview.com/2021/04/derek-chauvin-convicted-but-what-comes-next/
“Nevertheless, there is a serious question about whether Derek Chauvin got a fair trial. That is a separate question from whether the evidence was compelling. And to be sure, the stronger the evidence, the harder it is to show that due process was denied. A reviewing court is apt to conclude that even exemplary due process would not have made a difference.”
While the guilty verdicts are rational and defensible, the speedy nature of the decision could lead to problems for prosecutors in the appellate process.
D erek Chauvin has been convicted on all three counts.
For those who’ve watched the Chauvin trial, the only quick verdict that seemed rationally possible was a verdict of guilty. While I’ve been more skeptical than most commentators about the intent proof on the two murder counts (felony murder and depraved-indifference homicide), I thought the evidence on the manslaughter count — “culpable negligence,” for which it is unnecessary for prosecutors to prove criminal intent — was daunting.
Consequently, if we are sticking just to the testimony in the trial, it would be implausible — I’m tempted to say, impossible — that a rapid acquittal could have been defended as rational.
As things have turned out, the jury deliberated for less than a day. As this is written, the reporting indicates that the jury submitted no notes to the court to ask questions about the record, to request to hear any testimony reread, to seek any finer-point guidance on the law that controls the case. (I am hedging about the reporting because some matters in the case, particularly those involving the jury, have not been public.)
Word that the jury had so quickly reached a verdict signaled that Chauvin would be convicted.
The logic of the quick verdict is defensible. If the jury started with the felony-murder charge, Count One, they would have needed to find that Chauvin’s restraint and subdual of George Floyd evolved into a criminal assault. To convert what began as a lawful detention into a criminal assault, the jury would have focused on the fact that, for several minutes after Floyd had stopped breathing and lost his pulse, Chauvin maintained the back-and-neck hold — even for a minute after the ambulance arrived.
If jurors were understandably repulsed by that, they could logically have concluded, based on the instructions from Judge Peter Cahill on the law, that Chauvin had not only assaulted Floyd criminally but had also exhibited depraved indifference to human life. That would call for convicting on both murder charges. And if Chauvin’s intent was proved to their satisfaction for the murder counts, the jurors would undoubtedly convict on the manslaughter charge.
Still, there is one downside to the quick verdict for prosecutors: the appellate landscape.
Don’t get me wrong. I do not believe the convictions will be overturned — except for the possibility that the Minnesota supreme court could rule, when it hears a different but similar case in June, that the state’s depraved-indifference homicide statute does not apply to facts such as these.
Nevertheless, there is a serious question about whether Derek Chauvin got a fair trial. That is a separate question from whether the evidence was compelling. And to be sure, the stronger the evidence, the harder it is to show that due process was denied. A reviewing court is apt to conclude that even exemplary due process would not have made a difference.
That said, as soon as jury deliberations got underway, Cahill himself conceded that the prejudicial publicity against Chauvin, exacerbated by Congresswoman Maxine Waters’s inflammatory rhetoric over the weekend, create a significant appellate issue.
To make a record that the jury was not overwhelmed by publicity and intimidation, it would have been best for the jurors to deliberate for a few days — there was, after all, a mountain of evidence to sift through — and perhaps send some notes to the court. A split verdict (e.g., guilty on felony murder and manslaughter, but not guilty on depraved-indifference murder) also could have insulated the jury from any such claims. I am not saying the jury should have done that for appearances’ sake; I am saying that, had they done that, it would have been a bulletproof demonstration that the jurors made a discriminating appraisal of the evidence, and that they decided the case with exacting fidelity to Judge Cahill’s instructions on the law.
The fact that the deliberations were so short and, it would appear, indicative of sparse scrutiny of a complex trial record does not necessarily mean Chauvin was denied due process. But for Chauvin to have any chance of showing that he was denied due process, what had to happen has happened: The deliberations lend themselves to the claim that the jury did not see acquittal as an option.
This is a case in which the defendant plausibly argued from the start that he could not get a fair trial in Hennepin County. The judge declined to change venue, opining that the court could ensure a fair trial by an exacting jury-selection process. Yet, in the middle of that process, Minneapolis, which was obligated to ensure due process, publicized its decision to pay the Floyd family $27 million to settle a wrongful-death civil-rights suit. The city government could have done that at any time; it deliberately chose to do it as the judge was trying to ensure an unbiased jury. As a result, two jurors had to be removed because they admitted to being influenced by the settlement.
Throughout the trial, the publicity continued to be intense. There was also significant coverage of the jurors. They weren’t identified by name and address, but enough information was published that their families had to know it would not take a very enterprising snoop to track them down.
Then, just as the presentation of evidence was about to end, the tragic accidental killing of Daunte Wright by a police officer occurred in Brooklyn Center. That’s a suburb of Minneapolis, just ten miles from the courthouse. Some jurors in Chauvin’s trial either resided or had ties there.
Defense counsel Eric Nelson rightly pleaded with the judge to sequester the jury. There would have been no downside to doing it. The jury would have been sequestered anyway, when deliberations started. The court could have swiftly proceeded into summations, jury charge, and deliberations.
Instead, the judge gave the jury a long weekend at home, allowing counsel the day off on Friday to prepare for summations, precisely because the case featured complex evidence — complicated medical testimony and voluminous evidence on police procedures, particularly use-of-force protocols. As Nelson predicted, the judge’s denial of sequestration meant the jurors would be marinated for the crucial days right before deliberations in intense publicity, street violence, and unhinged demands that Chauvin be convicted of murder, no matter what.
That was the powder keg into which Waters and, hours before the verdict, President Biden lobbed their rhetorical bombs — though the president’s remarks were made after the jury already began deliberating behind closed doors, unlike Waters’s.
The guilty verdicts against Chauvin are rational and defensible. Many will zealously claim that the evidence is overwhelming, though I think that overstates matters on the issue of intent. The likelihood, in any event, is that Derek Chauvin’s convictions and the severe sentence that will be imposed on him in a few weeks will be upheld on appeal.
But remember: It was only 24 hours ago when commentators were observing, in the wake of Waters’s inflammatory remarks, that there was reason to fear the jury would peremptorily convict Chauvin without carefully considering the record — so fraught with intimidation and prejudice had the atmosphere become.
Then this afternoon, the jury returned a stunningly quick verdict, after asking no questions about the complex evidentiary record: Guilty on all counts.
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