Collage of prosecution and defense attorney's and Judge Cahill

Race and Perception: First Two Weeks of Derek Chauvin Pre-Trial

Minneapolis, MN – Jury selection in the murder/manslaughter trial of former Minneapolis Police Officer Derek Chauvin finished its second week with eleven jurors finalized at the end of Friday, March 19, 2021. Judge Peter Cahill officially ruled on Friday there would be no change of venue and no continuation, or postponement, of the trial.

The first week of this high profile case was affected by “pre-trial publicity,” according to Judge Cahill, and therefore two jurors who made it onto the jury were excused Wednesday morning, March 17, 2021.

Judge Cahill spoke to the nine selected jurors separately via Zoom video conferencing with the prompt: “Late last week there was extensive media coverage about developments in a civil lawsuit between the city of Minneapolis and the family of George Floyd. Were you exposed to any of this coverage directly or indirectly?”

Four out of the nine were exposed, however, only Jurors 20 and 36 stated that their exposure would affect their ability to remain fair and impartial on the jury.

Juror 20 told Cahill that the high dollar amount in the lawsuit settlement was shocking.

That kind of sent the message that the City of Minneapolis felt that something was wrong and they wanted to make it right to the tune of that dollar amount. I think in the headline if it would have said $2,000 versus $20 million, that’s a big change, so I think that that sticker price obviously shocked me, and kind of swayed me a little bit, yes.”

Juror 20

Juror 36 admitted that the exposure would impact them a lot.

“Last time I was asked about my strong opinions against Chauvin, clearly the City of Minneapolis has some strong opinions as well, and this just kind of confirms my opinions that I already had.”

Juror 36

Judge Cahill made sure to point out the differences between the civil case and the criminal case to each juror, adding that the civil case would not be submitted as evidence in the criminal trial. However, the “unfortunate broadcast of certain details,” as Cahill put it, had already made an unshakeable imprint on the two jurors.

Jury selection came to a close Wednesday with the jury count back up to nine.

Off to a Shaky Start

Because the pre-trial is being streamed, the public has a great opportunity to witness the jury selection process, and notice, maybe for the first time, the flaws in it.

On Monday, March 8, 2021, the first round of potential jurors arrived at the Hennepin County Government Center only to be dismissed and asked to come back the next morning. The defense team filed an appeal Monday to the MN Court of Appeals’ decision in favor of the prosecution to remand Judge Cahill consider reinstating the third-degree murder charge. Because of concern for a potential mistrial, the State filed a motion to stay the trial until the Court of Appeals responded to the defense’s appeal.

Along with lengthy discussions about the extra charge, the court was busy hearing nearly two dozen motions.

Community members outside the government center also had a busy morning—a large protest took to the streets of downtown Minneapolis calling for justice for George Floyd.

In the afternoon when court adjourned, George Floyd’s youngest sister, Bridgett Floyd, spoke to the press.

“I sat in the courtroom today and looked at the officer who took my brother’s life. I just really wanted that officer to know how much love Floyd had, not only by me and his family, but you guys, too, and the people around the country.”

Bridgett described her older brother as a caretaker.

“He didn’t have to know you to love on you, to give you advice, to be a shoulder to lean on.”

Jury Selection Begins

The Court of Appeals assured the district court that the third-degree charge could be added amid jury selection, so the selection officially began Tuesday, March 9.

Three jurors were selected and nine in total were questioned. The State used one peremptory strike and the defense used two. The two strikes from the defense were done on Hispanic individuals, leading to the State raising a Batson challenge, saying the defense was striking potential jurors based on race. The judge disagreed with the State and accepted the defense’s race-neutral reason for the strike.

A main vehicle for interviewing the potential jurors is the questionnaire they each filled out two or three months prior. The questionnaire, broken up into six parts, includes a total of 69 questions.

Two of them have provided a center basis for the questioning: “How favorable or unfavorable are you about Black Lives Matter” and “How favorable or unfavorable are you about Blue Lives Matter.”

Although jury questionnaires for homicide trials can be tailored trial-by-trial, many legal experts say they haven’t seen questions this polarizing. A potential juror was not selected after admitting their wife attended a protest. Another was sent home for having “strong views on social justice issues.”

Meanwhile, multiple jurors were selected with close relationships to law enforcement—one juror’s friend works for the Minneapolis Police Department.

MN Supreme Court Denies Defense’s Appeal, 3rd-Degree Murder Charge Reinstated

The Minnesota Supreme Court denied the defense’s second motion to throw out the third-degree murder charge on Wednesday, March 10.

Around 8:30 a.m. on Thursday morning, Judge Cahill ruled that prosecutors could reinstate the third-degree murder charge that had previously been filed against Chauvin. The re-addition of the third-degree, which was dropped in October by Cahill, but won on appeal by the State, adds another optional charge the State can attempt to prove Chauvin guilty of.

If found guilty of third-degree murder, which doesn’t require intent, Chauvin can be sentenced up to 25 years in prison. Second-degree murder is up to 40 years.

It was third-degree murder that sent Mohamed Noor to prison. Noor, a Somali-American, is the only police officer in Minnesota history to be convicted on murder charges for fatally shooting 40-year-old Justine Ruszczyk after she called 911. The city settled a civil case for $20 million in 2019.

A Historic Civil Settlement

On Friday, March 12, 2021, a historic $27 million settlement on a civil lawsuit was reached between the City of Minneapolis and the family of George Floyd. A press conference was held around 2 p.m. at the Convention Center in downtown Minneapolis featuring Ben Crump’s legal team for the Floyd family and Minneapolis officials. A third of the total goes to Ben Crump’s legal fees.

The family agreed to give $500,000 of the total to the area around George Floyd Square (GFS), the sacred space barricaded by the community where Floyd was killed. Details of how the $500K will be distributed are not yet known, and the first question raised at the press conference was if the legal team or family had been in contact with any of the caretakers at GFS, to which they said they hadn’t. The Floyd family and legal team visited GFS immediately after the press conference.

During jury selection, the judge excused two potential jurors for cause, both the State and the defense used one strike. One juror was sat, bringing the total to seven at the end of the first week.

Considering the Differing Facts

Monday morning, March 15, started with a case of the Mondays. Defense counsel Eric Nelson and Judge Cahill both shared concerns about the previous Friday’s news that Minneapolis reached a $27 million settlement with the family of George Floyd, speculating that it could prejudice jurors.

Attorneys for both sides also began discussing details about what expert witnesses can testify to—what the court will allow for them to have expertise about. For instance, a forensic psychiatrist may be allowed to talk about how human beings generally respond to traumatic stimuli, but not how a specific person would theoretically respond.

Nelson indicated he plans to use the controversial Hennepin County Medical Examiner’s report from the first, non-independent autopsy of George Floyd. The county’s report by Dr. Andrew Baker said Floyd experienced cardiopulmonary arrest while being restrained by Chauvin, and ruled the manner of death as a homicide. However, the office noted that the ruling “is not a legal determination of culpability or intent.”

The report also noted Floyd had “other significant conditions” including “arteriosclerotic and hypertensive heart disease; fentanyl intoxication; [and] recent methamphetamine use.”

The defense plans to call a medical examiner from the Office of Armed Forces, and forensic pathologist Dr. David Fowler, in addition to Dr. Baker.

In another autopsy done by Dr. Michael Baden and the University of Michigan Medical School’s director of autopsy and forensic services, Dr. Allecia Wilson, found that the cause of Floyd’s death was “by asphyxia due to neck and back compression that led to a lack of blood flow to the brain.” In this independent autopsy ordered by the Floyd family, the doctors found that Floyd was in good health, and therefore no underlying conditions contributed to his death.

“I am almost sick to my stomach right now”

The first juror to be questioned after the lunch recess on Monday, March 15, was Juror 59; an educator who shared that being unbiased would be “really extremely hardI work at a school with BIPOC faculty and students.” He highlighted a “significant detail” in how the ways in which the court attempts to provide safety for the jurors may actually endanger them.

“I wanna let you know that on my way in, I was asked for my ID by a police officer and he held it up in front of his iPad and looked at both sides, so my name has been compromised in my opinion. I am extremely unsettled about it, I can’t even stop shaking.”

Judge Cahill responded by saying the deputies check juror ID’s “to make sure that nobody passed their letter with the number because we are very concerned about, you know, your privacy.” Juror 59 quickly reacted:

“Well, yeah. A police officer looked at my ID and knows my name and that’s a big problem for me. It’s a very significant detail considering that the case is against another police officer.”

Cahill then asked: “Do you think you can presume the defendant innocent?”

“No, I am almost sick to my stomach right now.”

Juror 59

Patterns As Proof

Tuesday morning, March 16, the court focused on evidence submissions. The defense reintroduced their intent to submit into evidence the body-worn camera footage from an unrelated May 2019 incident with George Floyd and other officers. Nelson argued that both incidents have “all these remarkable similarities.” He went on to say, “It’s the exact same behavior in two different instances, one year apart.”

Even though this trial is prosecuting Chauvin, and therefore putting his behavior and past actions under a microscope is practical, his defense seemingly believes showcasing Floyd’s past is necessary for their client to walk free.

There are varying counts of complaints filed against Chauvin, but even the lower counts are above-average compared to his peers who average three. According to Michelle Gross of Communities United Against Police Brutality, who has been tracking police misconduct for over 20 years, Chauvin had a total of 26 complaints filed against him during his 8 years in MPD. According to news reports, 18 complaints were filed against Chauvin throughout his 19-year career.

Chauvin’s violent past is continuing to come to light. Besides George Floyd, he’s directly killed another person, Wayne Reyes, and participated in the deaths of three others. The prosecution plans to call several witnesses that have been violently assaulted by Chauvin, including at least one instance where he kneeled on someone’s neck.

Evidence found in the squad car that officers attempted to place Floyd in on May 25, 2020, was also discussed, but the defense motioned to submit evidence from the second search, which happened in January 2021. Judge Cahill said it was “mind-boggling” that it took so long to do an extensive search.

No final decisions were made on the evidence, and no jurors were seated to the jury panel on Tuesday, March 16.

On Thursday morning, one of the State’s attorneys Jerry Blackwell, the defense attorney Eric Nelson, and Judge Cahill argued again about the May 2019 arrest of George Floyd. Because Cahill was leaning toward allowing at least some of the body-worn camera footage of the police from the 2019 arrest during trial, the State wanted Cahill to allow expert testimony from Dr. Vincent in order to provide a different interpretation of Floyd’s behavior.

“When we left this issue last time, I had said it would appear to me that the expert testimony of Dr. Vincent would be admissible on the fairly narrow issues of Mr. Floyd’s emotional response on May 25th were consistent with the claustrophobic reaction, anxiety, or panic attack.”

Judge Cahill

Judge Cahill explained further that he stood by his earlier ruling in reference to the defense, that “Mr. Floyd’s emotional state on May 6th, 2019 and the statements he made, really aren’t relevant because his intent is not an issue here.”

“In part of the defense offer of proof, was they wanted to show that this was a common scheme or plan, and that the, or modus operandi, that Mr. Floyd’s emotional state and statements were very similar, if not identical.”

Judge Cahill

Blackwell argued that since he believed the defense “has been free to characterize George Floyd’s behaviors in any way they choose,” then the State should have that option, too.

“It’s a free kick at the goal [for the defense] if we’re not allowed to offer alternative explanations for the same behavior.”

Jerry Blackwell

Dr. Vincent is a triple-board certified MD in forensic psychiatry, and adult and adolescent medicine. The State wanted her to testify to how a general human being would respond to a traumatic event, and what reactions and behaviors are generally likely.

Blackwell brought up how the defense continued to characterize Floyd’s non-compliance as resisting arrest.

“If we look at the video tape, for example, and we can see, for example, [the police are] telling George Floyd to get in the squad car and they find that he’s not compliant. Does the non-compliance mean he’s resisting arrest or does it mean that he’s not capable of getting in the squad car because he’s suffering from the effects of anxiety or panic?”

Jerry Blackwell

Within the Minneapolis Police Department’s Use-of-Force Policy on Deescalation, which Blackwell read to the court, “When safe and feasible, officers shall consider whether a subject’s lack of compliance is a deliberate attempt to resist or an inability to comply based on factors including, but not limited to—on the list—behavioral crisis.”

Blackwell highlighted this part of the policy because it goes to the issue of the objective reasonableness of Mr. Chauvin’s conduct.

The fundamental question is: would a reasonable officer not have recognized [Floyd’s] behavioral crisis and not employed the force that Mr. Chauvin did?

Jerry Blackwell

The State noted that their goal with Dr. Vincent’s testimony wasn’t to prove the reasons behind Floyd’s behavior, but to provide the jury with an alternate explanation to the one(s) the defense will offer.

Blackwell and Judge Cahill went back-and-forth for a while, until Judge Cahill said he would make a ruling on it the next day.

On Friday morning, March 19, 2021, Judge Cahill ruled that the only evidence admissible from the May 6, 2019 encounter is for the limited purpose of showing an example of Mr. Floyd’s bodily reaction and his physical symptoms “upon being confronted in almost the exact same situation,” as on May 25, 2020.

Cahill ruled that only three parts of the evidence from May 2019 are admissiblethe portion of the police officer body-camera video from the time he approaches the car to when Floyd is out of the car and handcuffed, a photo of pills in the back seat of the squad car, and the blood pressure taken by the paramedic and Floyd’s statements to the paramedic for the purpose of that medical diagnosis.

Because he ruled highly specifically and did not allow for any evidence showing Floyd’s emotional behavior from May 2019, Cahill ruled that Dr. Vincent’s testimony is inadmissible. Cahill noted that he will not allow the defense to argue that Floyd fabricated his behavior at any point.

However Judge Cahill also mentioned to the State, that if they find that the defense says anything that opens the door, then he may allow Dr. Vincent’s testimony. The double-edged sword, though, is if he allows Dr. Vincent’s testimony, he will also allow the defense to rebut, and the entirety of the May 2019 video may be shown.  

Perceptions of Bias

During the jury selection so far in this criminal case, the judge and the attorneys have tried their best to select jurors who will be fair and impartial during the trial. The jury is expected to put their opinions, beliefs, ethics, and politics aside, and simply focus on the evidence which is presented to them, and the law that the judge tells them to consider; whether or not they agree with the law itself.

To effectively be fair and impartial, each juror will need to equally weigh each side’s arguments, testimonies, and evidence. However, for non-white prospective jurors, the entrenched racism in the United States and its institutions, and the subsequent effects and treatment they face, make it difficult for them to be seen as unbiased by the judge and defense.

On the eighth day of jury selection, prospective Juror 76a Black man and veteranopenly shared his explanations to answers on the juror questionnaire. When Nelson asked him why he had mixed emotions about serving on the jury, he noted his skin color.

“Because me as a Black man, you see a lot of Black people get killed and no one’s held accountable for it, and you wonder why or what was the decisions, and so with this maybe I’ll be in the room to know why.”

Nelson asked him why he strongly disagreed with the statement: “Discrimination is not as bad as the media makes it out to be.”

“Because being a Black man in America, I experience racism on a day-to-day basis.”

Juror 76 strongly agreed with the statement: “Minneapolis Police Officers are more likely to respond with force when confronting Black suspects than with dealing with white suspects,” and Nelson asked for an explanation.

“I stayed right around the area where this incident happened, and so on numerous occasions if someone in the area got shot or someone went to jail, I mean, you know, it was known for the police to ride through the neighborhood with ‘Another One Bites the Dust.’ And you know it’s like they just antagonized us in the area. And you know you can go to St. Louis Park or Plymouth and it’s not treatment like that with whites.”

Even through sharing his reality with the court, he answered Nelson multiple times that he would be able to put his beliefs and opinions aside as a juror and focus on the facts presented to him.

In a sidebar, Nelson made a motion for cause “essentially on the basis that this juror made several remarks regarding the Minneapolis Police Department . . . I felt that his bias was against the Minneapolis Police Department specifically.”

The court denied the strike with that cause, but allowed the defense to use a peremptory strike. Judge Cahill did agree, however, that Juror 76 did have “a strong negative view of Minneapolis Police Department in contrast to suburban police departments. Which was interesting, it was not just a global [negative view].”

Juror 76 expressly stated that he deals with racism daily, and it is not merely his perception, either. In a study by researchers from Harvard T.H. Chan School of Public Health published in June 2020, it was found that Black people are more than three times as likely as white people to be killed during a police encounter. Perhaps it is not that Juror 76 is biased because he has a negative view of MPD, but the other way around.

During his argument for why Dr. Vincent’s testimony on George Floyd’s behavior was important, Jerry Blackwell reminded the court that the reason Floyd was approached by police at gun point on May 25, 2020 was because of an “investigation of a fake $20 bill.”

Blackwell went onto say how traumatic an encounter that must have been for Floydhaving a gun pointed at his head over a small amount of counterfeit money.

Since the inception of this country’s first police force in 1838 in Boston, they have focused on protecting the property and interests of wealthy people. Therefore it is not exceptional that a Black man lost his life during an encounter with a police officer over a minor imitation of currency.

We spoke with human rights activist and journalist Mel Reeves, who told us he believes that “Black people are not gonna be able to get on this jurynot honest Black people.”

“A lot of the people who are gonna qualify for [the jury], or who they think are gonna qualify, are folks who have a certain perspective, right? That allows them to see things from the perspective of the police.”

Mel Reeves, Journalist
Ongoing coverage of the Derek Chauvin Trial

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