A search for impartial jurors in Minneapolis
Many already have strong views on policing, George Floyd’s death
“If you get a guy who says he doesn’t know anything ... you have to ask if he was on Mars.” Marvyn Kornberg New York defense lawyer
Millions of people watched George Floyd take his last breath while pinned under police officer Derek Chauvin’s knee. Tens of thousands of people took to the streets to protest police killings of Black men, chanting his last words: “I can’t breathe.” Others criticized looters and responded, “All lives matter.”
Lawyers must find 12 people in and around Minneapolis who haven’t made up their minds about what happened.
Chauvin, a former Minneapolis police officer, is charged with second-degree murder and manslaughter. After an appeals court ruling Friday, he could be charged with third-degree murder, too. Three other former cops are charged with aiding and abetting those crimes; they’ll go on trial later this year.
Tuesday morning, lawyers began selecting a jury – a painstaking process often dependent on instinct, emotional intelligence and stereotypes over race and class.
Three weeks have been blocked off to find 12 jurors and up to four alternates. “Jury selection is going to be very long,” said Ben Crump, the Floyd family attorney. He said he believes “you can get people who
will commit to be honest, and that’s all you can ever ask for.”
Eric Nelson, Chauvin’s defense attorney, requested a change of venue, arguing that media coverage of “riots and looting” was so intense that “the Twin Cities jury pools have surely been tainted and a fair trial cannot be had.”
Hennepin County District Court Judge Peter Cahill denied his request.
Tuesday morning, people in the jury pool were brought into the courtroom one by one and sworn in by the judge, who asked them how much media exposure they had to the case.
Cahill asked whether they could put their opinions aside and serve as a “blank slate” for the facts. Then Nelson started his questions.
Chauvin took notes throughout and put on headphones to join his lawyer in a sidebar meeting with the judge.
The first juror chosen is a white man about 30 years old. A chemist who works in a lab analyzing environmental samples, he described himself as a “pretty logical person” who relies on facts and “what’s in front of me.”
The juror said he hadn’t seen the video of Floyd’s arrest. He said he visited George Floyd Square – where Floyd was pinned under Chauvin’s knee – with his fiancé because “it was a transformative event for that area” and they were thinking of moving there.
During questioning, the man provided more neutral opinions than what he put on a questionnaire sent in advance. For example, he responded on the questionnaire he “somewhat agreed” that officers might cover up crimes involving use of force. Under questioning, he said he had no opinion. He moderated his opinions on the Black Lives Matter and Blue Lives Matter movements, too.
“I support the message that every life should matter equally,” he said Tuesday. “I think all lives matter equally.”
‘You are a potential juror’
In state court, lawyers for the defense and prosecution question prospective jurors. In the Chauvin case, the court sent a 13-page questionnaire to people in the jury pool months ahead of time.
At the top of the document is a stern warning: “From this day forward, DO NOT read or intentionally view anything about these cases or do any investigation or research related to these cases.”
The questionnaire includes sections on media habits, police contacts and opinions on the criminal justice system.
It asked whether the potential juror has struggled with drug addiction. A toxicology report showed fentanyl and methamphetamine in Floyd’s system, and the defense is likely to argue he died from a drug overdose.
The questionnaire asked jurors if they or someone close to them participated in “any of the demonstrations or marches against police brutality.”
Other questions include whether the potential jurors, or someone they know, were injured or suffered property damage during the protests.
In bold, it says, “No matter what you have heard or seen about this case, and no matter what opinions you might have formed, can you put all of that aside and decide this case only on the evidence you receive in court, follow the law, and decide the case in a fair and impartial manner?”
Monday, attorneys struck 16 potential jurors from the pool based solely on their answers to the questionnaire.
What will the jury look like?
Miriam Krinsky, a former federal prosecutor, said the aim in any trial isn’t for a jury that knows nothing about the case but rather a jury willing to be fair.
Many questions of potential jurors, she said, are a cover for race-based decisions. Questions regarding bad experiences with law enforcement “too often lead to eliminating jurors of color in over-policed communities,” she said.
Some community advocates in Minneapolis are concerned about the racial composition of the jury, said Sarah Davis, executive director at the nonprofit Legal Rights Center in Minneapolis.
Hennepin County, where Minneapolis is located, is mostly white, and so are its juries.
Then there’s the length of the trial, the need to sequester during deliberations – and perhaps longer – and the coronavirus pandemic and the challenges it brings for schooling and child care. The Black community has been disproportionately hit by COVID-19.
Minneapolis public school students in elementary grades do a hybrid of inperson and distance learning while older students are doing distance learning.
Jurors must take time off work for up to four weeks, during which time their employers are not required to pay them. The court will pay jurors $20 a day, plus a mileage reimbursement.
“I think the likelihood of having a racially diverse jury is slim to none,” Davis said. “We have to go into it just knowing that that’s the case. And I think each side is looking for jurors that are going to be more inclined to side with them.”
Can jurors forget what they saw?
Floyd took his last breaths as he lay handcuffed on the ground, pinned beneath Chauvin’s knee for more than nine minutes. The incident, caught on video by bystanders, was seen around the world.
Marvyn Kornberg, a New York City criminal defense lawyer, is no stranger to high-profile cases. He represented Justin Volpe, a New York Police Department officer accused of sodomizing a handcuffed Haitian immigrant with a stick in a police precinct restroom in 1997.
Kornberg said it would be extremely difficult to find a potential juror unaware of the allegations against Chauvin.
“If you get a guy who says he doesn’t know anything about anything in that case, you have to ask if he was on Mars when it happened,” said Kornberg, who has no connection to the Chauvin trial.
Kornberg recommended looking for a juror who has an open mind: “Can you forget what they saw on TV and focus just on what you see and hear in this trial?”
Besides trying to ferret out biases, lawyers can make a connection, educate and even ingratiate themselves with the people who will decide the case, said Joseph Daly, emeritus professor at Mitchell Hamline School of Law.
In another well-known case, New York City criminal defense lawyer Benjamin Brafman defended Martin Shkreli. He’s best known as the “Pharma Bro” who drove a 5,000% price hike on a drug used by immunocompromised patients such as those with HIV or cancer. Shkreli was tried and convicted on unrelated charges of securities fraud.
Brafman, who has no connection to the Chauvin trial, recommended lawyers subtly challenge potential jurors, asking, “Do you have the courage to acquit if you feel an acquittal is required under the law? Do you feel you can go back into your community, your neighborhood, your family if you’ve made a decision that might not be popular?”
Brafman said criminal defense lawyers in difficult cases typically will try to tease out the true feelings of potential jurors by asking open-ended questions and following up. “You want to get at what they’re thinking,” he said.
Prosecutors object
If attorneys want to eliminate a juror, the judge must approve their reason, or lawyers can use what’s known as a “peremptory challenge” to cut someone without providing a reason.
The defense will have 15 peremptory challenges in the Chauvin case and the prosecution will have nine, said Mary Moriarty, former Hennepin County chief public defender.
Tuesday, Nelson used a peremptory challenge to strike the first potential juror, a mother of three from Mexico. She spoke with a strong accent, and Cahill said she had some trouble understanding legal jargon.
The woman, who was not provided with a translator, said her understanding of English is good, but she needed help from her husband to fill out the questionnaire.
The defense used its second peremptory challenge on a Latino man, a former Southern Californian who practices the martial arts jiujitsu and muay thai.
The defense challenged the prosecution’s effort to have a former professional fighter testify. That man saw Chauvin restrain Floyd and pleaded with the officer to stop doing the dangerous “blood choke.”
Prosecutors responded by raising a Batson challenge, an objection on the grounds that a juror was excluded on the basis of race, ethnicity or sex, because that was the second time the defense used a peremptory challenge to strike a Latino from the jury.
The judge denied the challenge, saying the defense had raised a “race-neutral” reason for striking the kickboxer: that he had an opinion about some of the moves the cops used and would have to be proved wrong. That would improperly shift the burden of proof to the defense, the judge said.
Coronavirus, security concerns
Public access has been severely limited to enable social distancing. Jurors won’t sit in the jury box but will be spread throughout the public seating area.
For their safety, jurors will not be named during the trial, though their names may be made public afterward.
“The entire courthouse is shut down, and the courthouse is surrounded by fencing and barbed wire and concrete barricades. I know some of the impact that’s having on the community; I do wonder what impact that has on a potential jury,” Moriarty said. “I wonder if that will make them fearful for any reason.”