Chauvin's attorney files motion for a new trial, doesn't include BLM shirt–wearing juror as a reason

The attorney for Derek Chauvin, Eric Nelson, has filed motions for a new trial and for a hearing to impeach the verdict based on jury misconduct (a so-called Schwartz Hearing under Minnesota law).  Nearly a dozen bases are cited for a new trial, but not the recent revelations about juror Brandon Mitchell wearing a BLM t-shirt at a rally and opining that people should get on juries "to spark some change."

The Associated Press lists the reasons the motions cites for a new trial:

Nelson cited many reasons in his request for a new trial. He said Judge Peter Cahill abused the discretion of the court and violated Chauvin's right to due process and a fair trial when he denied Nelson's request to move the trial to another county due to pretrial publicity.

He also said Cahill abused his discretion when he denied an earlier request for a new trial based on publicity during the proceedings, which Nelson said threatened the fairness of the trial. Nelson said that publicity included "intimidation" of the defense expert witness, which he said could have a "far-reaching chilling effect" on the ability of defendants to get expert witnesses in high-profile cases, including the upcoming cases of the three other former officers charged in Floyd's death.

"The publicity here was so pervasive and so prejudicial before and during this trial that it amounted to a structural defect in the proceedings," Nelson wrote.

Nelson also took issue with Cahill's refusal to sequester the jury for the trial or warn them to avoid all media, and with his refusal to allow a man who was with Floyd at the time of his arrest to testify.

Nelson said Cahill also abused his discretion when he submitted jury instructions that Nelson said failed to accurately reflect the law on the murder charges and use of force, permitted the state to present cumulative evidence on use of force, and ordered the state to lead witnesses on direct examination, among other things.

Nelson also asked the judge for a hearing to impeach the verdict on the grounds that the jury committed misconduct, felt race-based pressure, felt intimidated or threatened, and/or failed to adhere to jury instructions, though the filing did not include details about that assertion. To impeach a verdict is to question its validity.

The brief did not mention recent reports that one of the jurors participated in an Aug. 28 march in Washington, D.C., to honor Martin Luther King, Jr.

I have to assume that the reason Nelson didn't cite Mitchell's lack of completeness in his answers to voir dire questioning of members of the jury pool and his potential biasing of the jury has to do with time constraints.  But it is almost certain that Mitchell's conduct will be subjected to future legal action, including possible perjury charges.  But legal authorities whose expertise dwarfs my amateur understanding are skeptical that Mitchell will be in legal jeopardy or that the conviction will be thrown out.

Isabel Van Brugen of the Epoch Times covers the wiggle room Mitchell has:

Mitchell on Monday told the Star Tribune that his uncle posted the photo on social media during the event, a commemoration of the anniversary of Martin Luther King Jr.'s "I Have a Dream" speech from 1963.

Mitchell asserted that the event was not a rally for Floyd's death or against police brutality. All 12 jurors were asked during selection if they had attended any such events as part of a 14-page questionnaire, as well as for their opinions on the Black Lives Matter movement.

Mitchell responded "no" to a question asking if he, or anyone close to him, had ever attended or participated in such events, according to the Star Tribune. Mitchell claimed he had been transparent as a juror about his favorable view of the BLM movement.

"I think they asked if I attended any protests for George Floyd or anything for police brutality. My answer was no because I hadn't," he told WCCO-TV in Minneapolis. "This particular march was more so for voting, voter registration. Getting people out to get out and vote for the presidential election that was upcoming a couple months afterward … This was the only thing I attended."

"It was huge to get people geared for voter turnout, so being a part of that, being able to attend, you know, the same location where Martin Luther King gave his speech was a historic moment," Mitchell added. "Either way, I was going to D.C. for this event, even if George Floyd was still alive."

On the other hand:

Other images taken at the event show individuals dressed in BLM T-shirts, carrying BLM flags, and other signs with slogans such as "I Can't Breathe."

And the march Mitchell attended was "called the Commitment March: Get Your Knee Off Our Necks, a reference to George Floyd's death."

Jonathan Turley cautions that the overworked, outspent, and outgunned attorney Nelson may be held to account for failing to investigate Mitchell sufficiently:

The controversy is strikingly similar to discoveries made about Juror 1261 in the trial of Trump associate Roger Stone. I wrote a number of columns about Tomeka Hart who clearly gave false or misleading answers in voir dire.  Hart is a Democratic activist and critic of the Trump administration. She not only participated in undisclosed protests and posted anti-Trump statements on the Internet but specifically discussed the Stone case.

However, District Court Judge Amy Berman Jackson engaged in willful blindness to excuse Hart's conduct and avoid ordering a new trial.  I predicted that the court would dismiss the motion rather than defend the defendant's right to an unbiased jury. The court simply brushed aside these clear examples of bias. (snip)

I do agree with Judge Jackson that there is question of whether this information "could …have been discovered earlier through the exercise of due diligence."  (snip)

The defense will have the same uphill battle in the Chauvin appeal and the question is whether there is anything in addition to to photo. It will also have to be prepared to answer, as in the Stone case, why it did not perform a full Internet search on prospective jurors.

At a practical, as opposed to a legal, level, Judge Cahill has already overruled several defense motions, including a change of venue, and shows no signs of wanting to overrule himself.  He does, after all, live there, and knows that his home and family, as well as his personal safety, are at risk to the mobs that have shown a willingness to burn, loot, and murder — the other meaning of BLM in  practical terms.  We may natter on all we wish about the principles of justice, but justice is in the hands of flesh-and-blood individuals, and courage is not always the predominant response.

It is also worth noting that the appeals court judges in Minnesota, including the justices of the state Supreme Court, are elected.  My guess is that a reversal of the conviction at the appellate level is unlikely, given the probability that extensive rioting would be triggered, and the appeals court judges or justices would be held responsible.  I don't see much hope at the federal appeals level, either, up to and including the Supreme Court of the United States.

These are the repellant realities of justice today when sacrifice of a white cop's freedom is demanded by murderous, violent mobs.

Photo credit: Minnesota Department of Corrections via WCCO TV.

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