Former Minneapolis police officer Derek Chauvin’s defense team is likely to appeal his three convictions for killing George Floyd, but legal experts say the odds of success are incredibly slim.
Chauvin was convicted of both second and third-degree murder, as well as manslaughter. He’s scheduled to be sentenced on June 25, after which point his defense will have ninety days to file an appeal.
Legal experts and television pundits have debated multiple potential lines of argument for appeal, including Judge Peter Cahill’s refusal to change the trial’s venue, possible civil unrest that might’ve occurred if Chauvin wasn’t found guilty and potentially inflammatory comments made by people like Democratic California Rep. Maxine Waters.
Experts say that the venue challenge will almost certainly be rejected. It’s unlikely that a pool of potential jurors anywhere in the state of Minnesota could have avoided the intense media coverage and civil unrest that surrounded the case.
“If they were to overturn the conviction and send it back to the trial courts to be retried in a different venue, it would be even more difficult now than it was before the first trial to find another location in which pre-trial publicity wasn’t ubiquitous,” Minneapolis-based defense attorney Brock Hunter told the Daily Caller.
Possible threats of violence have been the focus of some parts of the media, which have opined that jurors may have felt mob pressure to vote guilty lest Minneapolis be subjected to another round of rioting. Waters added fuel to the fire when she told protesters to “get more confrontational” if Chauvin wasn’t found guilty. (RELATED: ‘I Am Nonviolent’: Maxine Waters Defends Call For Protesters To ‘Get More Confrontational’)
— The Hill (@thehill) April 25, 2021
Judge Cahill piqued the interest of some observers when he acknowledged Waters’ comments in the courtroom: “I will give you that Congresswoman Waters may have given you something on appeal that may result in this whole trial being overturned,” he said as the trial neared its conclusion.
Waters’ incendiary language, and the unrest that occurred after the killing of Daunte Wright, are unlikely to lead to a successful appeal, according to Hunter. “Unless there is some very clear evidence that one or more jurors were improperly influenced during the course of the trial, I just don’t know that that’s going to go anywhere,” he said.
Another Minnesota-based attorney, Michael Brandt, concurred. “Unless there is some very clear evidence that one or more jurors were improperly influenced during the course of the trial, I just don’t know that that’s going to go anywhere,” he said.
“Was it unfortunate that certain cities in Hennepin County went into a curfew for those couple of days? Yep. Was it appropriate for Maxine Waters to basically say, you know, ‘Go into the streets and engage in civil unrest if he’s not found guilty? For a gazillion reasons, inappropriate. But, unless the jurors say ‘Yeah that affected me,’ it’s kind of no harm no foul,” he added. (RELATED: Alternate Juror For Chauvin Trial Weighs In On Verdict)
For that reason, it isn’t likely to be an issue that the jury wasn’t sequestered for the length of the trial. Even if the jurors may have been exposed to something that may have influenced their decision, the defense would have to actually prove that that’s what happened. “Courts generally are very reluctant to sequester jurors throughout the entire pendency of a big, long trial like this. It’s a pretty onerous thing,” Hunter said.
So far, no jurors have indicated that they felt pressured by the media circus or civil unrest hanging over the trial. One juror, 31-year-old Brandon Mitchell, said the opposite on CBS This Morning: “The pressure more so came from just being in the room and being under stress. But it wasn’t pressure to come to a guilty verdict.”
Some observers have pointed to the case of Mohamed Noor, a former Minneapolis police officer convicted of murdering Justine Ruszczyk when he fired out the window of his squad vehicle into an alley in 2017.
Prosecutors want the 3rd degree murder charge re-added to the case, in light of the Appeal Court ruling upholding the Murder-3 conviction in the Mohamed Noor case. Judge Peter Cahill dismissed it from the Chauvin case. He doesn’t agree with the Appeal Court ruling.
— Lou Raguse (@LouRaguse) March 1, 2021
Noor’s appeal of his third-degree murder conviction has been taken up by the Supreme Court of Minnesota. Noor’s appeal centers on whether or not someone can be convicted of third-degree murder if their deadly act was aimed at just one person, and can the reckless nature of the act establish the “depraved mindset” described in the statute, according to the Star Tribune.
The third-degree murder charge against Chauvin was initially thrown out before being reinstated by Cahill, and the fate of Noor’s legal challenge could conceivably play a role down the line in Chauvin’s case.
Even if the third-degree murder conviction were overturned, though, it wouldn’t make a material difference in Chauvin’s case. He will be sentenced based on the higher second-degree murder conviction, which carries a maximum sentence of 40 years, regardless.
That decision to reinstate the third-degree murder charge wasn’t the only one the judge made that will play a role in the appeal process. Brandt said that Cahill gave the defense more latitude than usual, likely due to the unique nature of the trial.
“Cahill gave a lot of latitude in jury selection to address that exact issue (the venue)… he gave the defense much more latitude in questioning jurors than he normally would. I’ve had a lot of cases with Judge Cahill and he normally would not allow a defense lawyer to go that far in jury selection, but he did here,” he said.
As for his comment about Rep. Waters, Brandt said it was unusual, but likely a moment of frustration more than anything else: “I think when Cahill made those comments, you could tell pretty well that he was pretty frustrated with what people were saying outside. I think to a certain extent, a lot of that was his frustration coming out, and it was more of an offhand, anecdotal comment as opposed to a legal conclusion.”
Cahill also warded off another potential line of argument before the trial began. After the city of Minneapolis reached a $27 million settlement with the Floyd family, Cahill removed two jurors who had been selected after determining they could no longer be impartial.
Cahill’s diligence may ultimately prove to be the decisive factor in a Chauvin appeal. “Minnesota’s Court of Appeals, and appellate courts in general across the country, give pretty broad discretion to the judge who tried the case. Absent some really clear abuse of that judge’s discretion, some clear error that could have impacted the outcome of the trial, they’re going to let convictions stand,” Hunter told the Daily Caller. (RELATED: Police Chiefs Praise Chauvin Conviction)
Brandt agreed, and described Chauvin’s chances as weak: “Generally speaking in Minnesota, less than 10% of appeals ever win… so just statistically it’s a bit of a longshot… Even if, let’s say the court of appeals were to say ‘Yeah, we think Judge Cahill screwed up here or he did that wrong,’ you still have to show what we call ‘but for’ – but for that error, the verdict would’ve been different.”
“There’s a common misperception among a lot of laypeople, that ‘Oh, I’ll just go to an appeal’… and the reality is your best shot at any case is at that district court level because the odds of getting something reversed are pretty low.”