Will appeals judges find the courage to overturn Chauvin conviction?

By Jack Cashill

The judges on the Minnesota Court of Appeals will soon be asking themselves the same question the jurors did in the third-degree murder trial of former Minneapolis Police Officer Derek Chauvin.

Do I save Derek Chauvin? Or do I save my own ass?

The judges will inevitably have to consider the effects on the community’s well-being and on their own personal safety if they choose to overturn Chauvin’s conviction.

The jurors could keep their fears to themselves. The judges will have to confront them head on. In his concise and passionate reply brief filed on Oct. 7, Chauvin attorney William F. Mohrman allows the judges little wiggle room. Says he bluntly and convincingly, “Chauvin did not receive due process.”

There were many reasons why this was so. The one that jumps out at me was “the exclusion of the photo from the MPD training manual showing an officer doing exactly what Chauvin did.”

On a personal note, a week or so before the May 2020 incident in which George Floyd died, I chanced to see a Kansas City, Missouri, police officer applying the exact same maneuver.

The suspect he was restraining with his knee was a female. Upon seeing the encounter, my first thought was, “Thank God she’s white.” If black, the story might have led the evening news. The maneuver looks bad, but it works, is relatively safely and has been widely used, even in Minneapolis.

Mohrman dedicated most of his brief to the District Court’s failure to accept a venue change for Chauvin. Not since the federal civil rights trial of the cops acquitted in the Rodney King dust-up has any defendant faced so frightened a jury.

As Justice Oliver Wendell Holmes Jr. memorably said of the Atlanta jury that convicted Jewish merchant Leo Frank of murdering a 13-year-old female employee in 1913, “Mob law does not become due process of law by securing the assent of a terrified jury.”

The Chauvin jury deliberated in the wake of what Morhman called “the second-worst riots in U.S. history.” The worst riots in American history were those that followed the acquittal of the officers charged with beating Rodney King. Mohrman did not make the connection explicit. He did not have to.

The riots weren’t the only influence on the jurors. Mohrman cited “overtly hostile” media coverage, the nearby Brooklyn Center riots during the trial, a certain congresswoman “egging on the violence,” physical attacks on the officer’s attorneys and the lack of a cooling period after the riots.

If that were not prejudicial enough, days after the riots the Minneapolis police chief called the incident a “murder” – a legal conclusion – on the same day he announced Chauvin was fired.

Morhrman was most passionate in his response to the State’s claim that the Twin Cities were “calm leading up to and throughout the proceedings.” This claim, said Mohrman, was “absurd.”

“‘Calm’ is not evidenced by the necessity to surround the courthouse with concrete block, barbed wire, two armored personnel carriers and a squad of National Guard Troops throughout the trial.”

“‘Calm’ is not evidenced by Gov. Walz deploying National Guard troops around the Twin Cities five days prior to jury deliberations.”

“‘Calm’ is not evidenced by barricades and barbed wire going up around the metropolitan area. The Twin Cities were not ‘calm’ – they were bracing for a riot in the event Chauvin was acquitted.”

If the menace in the air were not problem enough, Mohrman argued, the court abused its discretion by failing to sequester the jury throughout the trial.

The court further abused that discretion, he continued, “by accelerating Chauvin’s trial when it should have delayed to allow for a cooling period.”

Mohrman concluded, “Chauvin’s case lands in the company of extreme cases where publicity went beyond the bounds of mere news media and had a physical effect.”

Oral arguments, I am told, will be scheduled for January. The normal procedure is for the Court of Appeals to select three of its 19 judges to review the case as a panel.

Morhman suggested three possible remedies: reversal of the conviction, reversal and a remand for a new trial, or a remand for re-sentencing. If justice favors the first option, smart money favors the third.

Smart money also favors an early January outbreak of a new COVID variant at the Minnesota Court of Appeals. “You know I’d love to be on that panel but …”

To learn more, see www.cashill.com.

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