I’ve been following the developments in the pre-trial proceedings in the trial of former Minneapolis Police Officer Derek Chauvin for the death of George Floyd.  Not being in the room or being able to watch the live feed being sent to a press room, I’m dependent upon the descriptions provided by others.

But I’ve been shocked by the prejudicial views about the facts of the case that Judge Cahill has accepted as tolerable in opting to not strike potential jurors “for cause.”

Today he denied a renewed defense motion to change venue based on the public announcement by the City of Minneapolis earlier this week that it had settled the “wrongful death” suit filed by the Floyd family or $27 million.  At the time of the announcement, 9 jurors had already been seated for the trial.  Judge Cahill had Zoom conferences arranged with all nine of the jurors to question them on whether they were aware of the settlement, and whether the news had influenced their views on the case.  In response to their answers, he dismissed two of the nine.

The news from today’s proceedings is that twelve jurors have now been selected to serve as the jury — seven women and five men — leaving only the selection of two alternates left for next week.  Opening arguments are set to begin on March 29.

But the real news is that Derek Chauvin will not be afforded a criminal jury trial before 12 fair and impartial jurors — several of the jurors that Judge Cahill allowed to get past the “for cause” challenge are hopelessly biased against Chauvin — or at the very least he should not have to rely on their “pledge” to set their biases aside in promising to render a verdict based only on the evidence.

But that is all that Judge Cahill has obligated them to do in determining that they are not subject to be excluded for cause.  The result is that the defense was forced to use some of its limited number of peremptory challenges for no purpose other than to remove biased jurors, rather than the reason such challenges are allowed to both sides — to narrow down the pool of unbiased jurors to a group of 12 that each side is satisfied with.

Judge Cahill’s views on the option to change venue are — in my opinion — completely bass-ackwards and quite likely headed for a reversal. If not in Minnesota state courts then in federal courts where Chauvin, if convicted, would be able to raise challenges to his conviction based on the denial of his federal constitutional rights. A “fair and impartial jury” is a fundamental “trial right” incorporated into the Fifth Amendment’s “Due Process” guarantees, and the Sixth Amendment’s expressly stated right to an “impartial jury.”

Judge Cahill’s views expressed in court today on the renewed motion by Chauvin’s attorney was captured by the Minneapolis Star Tribune:

Regarding a change of venue, the judge said, “I don’t think there’s any place in the state of Minnesota that has not been subjected to extreme amounts of publicity in this case. … With that, we’ll continue with jury selection in this case and in this county.”

Quite frankly, Judge Cahill, that’s not the “fookin question” — to quote my favorite crazy Irishman from Braveheart.

The correct question is whether Derek Chauvin can be afforded a trial with 12 “fair and impartial jurors” in Hennepin County based on what Judge Cahill is seeing and hearing in his courtroom, not whether “This is as good as we can do in the state” based on ZERO factual record as to that issue.  “As good as we can do” is not a standard by which the “Due Process” clause of the Fifth Amendment gets measured.

Speaking of which — did I mention that Chauvin has a single defense attorney handling his entire case while the State of Minnesota is using a cast of 10 attorneys to prosecute him, some of whom are private practitioners who are donating their time to the effort?  Judge Cahill could put a stop to that too if he wanted to do so.

I have another story in the works examining the comments of some of the jurors for whom Judge Cahill required the defense to use a peremptory challenge in order to remove them from the jury, and the legal standards that apply with respect to what constitutes “fairness and impartiality” when it comes to jurors in a high profile case.

All trial court judges made what is called an effort to “rehabilitate” a juror who has made comments that might call into question that juror’s ability to be “fair and impartial” to both sides.  It has been reported that Judge Cahill has been aggressive in attempting to do so.  Without seeing first hand the kinds of questions he has asked in his efforts it is hard to be critical with specifics.  But in reading the reports on the initial comments made by some of the jurors before Judge Cahill undertook to rehabilitate them, my reaction was that the juror should have been simply excused for cause because no matter what answer they might give in response to the “rehab” questions posed, there would remain a strong suspicion the juror could not — in fact — be fair to Chauvin notwithstanding what they might say.

At this point, I will note that my upcoming article will point out that peremptory challenges by the defense are being used against jurors that Judge Cahill has rehabilitated after they expressed negatives views towards Chauvin, while peremptory challenges by the prosecution have reportedly been used against jurors who have expressed little knowledge of the case or being neutral to the parties. It’s always possible that the jurors being removed by the prosecution are not deemed as forthcoming with their answers, but it is a curious juxtaposition of the efforts of the two sides.

A second development today was a ruling by Judge Cahill that he will allow the defense to introduce evidence that during a previous arrest in 2019 George Floyd swallowed drugs he was carrying in order to avoid being charged with possession.

George Floyd is not on trial for anything he did in 2019, and trial court judges are normally reluctant to allow past criminal conduct of a victim to be admitted in a trial without a direct link to the crime charged. But the Coroner’s Report, showing a potentially lethal level of fentanyl in Floyd’s blood, and the absence of any physical damage to any part of Floyd’s neck or airway attributable to the placement of Chauvin’s knee makes it relevant to this case as an alternative theory for what caused Floyd to suffer a heart attack brought on by respiratory arrest.

There is an old saying among prosecutors — trial court judges never get reversed for rulings that help a defendant in a criminal case gain an acquittal.

But they do get reversed when they keep out evidence that might help a defendant, and that defendant gets convicted.

Why?  The prosecution doesn’t get to appeal an acquittal in a criminal case.’

Trial court judges hate it when a criminal conviction gets reversed and they have to try the case over again, and that tends to “inform” their thinking.

If you understand criminal litigation, you understand my point.