Criminal defense attorneys fight huge obstacles every time they take on a new case. They must overcome prejudice toward individuals from lower rungs of the socioeconomic ladder, people with accents or different skin colors, and those dealing with mental illness. They must confront prevailing attitudes about law enforcement and public safety.
But a capable advocate can usually overcome those challenges through good trial preparation, smart jury selection, great storytelling, and skillful argument. The exception to the rule is the high-profile criminal case.
When an event has become front-page fodder, the defendant requires a strong legal team with an arsenal of resources, including a top-notch investigator and jury consultant, to have any hope of success. Which is to say that poor defendants could find themselves at a disadvantage in a high-profile case.
Over the course of my career, I have represented defendants whose names people don’t need to Google, and others whose crimes were sufficiently shocking that they achieved local notoriety. I have seen and experienced firsthand the difficulties associated with advocating on behalf of a headline name.
How does a defense attorney find unbiased jurors when a case has been tried already in the national media? If Harvey Weinstein’s attorneys had gotten a venue change, would they have found panelists who hadn’t heard of #MeToo? Not likely.
Imagine, then, the challenge for attorneys representing Derek Chauvin, J. Alexander Kueng, Thomas Lane, and Tou Thao. Unless they stumble upon a person who lives off the grid, they will be hard-pressed to find anyone who has not viewed the gut-wrenching video that launched a worldwide Black Lives Matter reckoning during the 2020 pandemic summer. If prospective jurors have read or seen nothing else, “I can’t breathe” will be etched in their brains.
The Critical Job of Jury Selection
What can the defense do to help their clients? Can they attain a fair trial in the “Case That Was Heard Around the World”? Their most critical job will occur on day one, with jury selection. Voir dire is always a difficult process. In high-profile cases it is hugely consequential.
Despite carefully worded and detailed questions, attorneys and their consultants are not mind readers. They cannot with certainty identify jurors’ hidden agendas, ferret out racial biases and cultural preconceptions, or know jurors’ back stories.
For this jury, they must home in on biases and agendas without running afoul of constraints on seating representative juries. Both sides will want “ideal jurors.” The prosecution will look for Black jurors, liberals, and progressives; the defense will lean toward White jurors, gun-rights advocates, and law-enforcement supporters.
Even the most thorough and careful questioning may not reveal a “stealth juror,” such as the juror substituted into the panel weighing the fate of my client Scott Peterson more than a decade ago. Only after the trial did we learn that this juror, whose agenda was to see our client sentenced to death, had lied about her history during voir dire. Had we known the truth, we would have disqualified her.
Trials in the Social Media Age
Could the right jury return a not-guilty verdict? It certainly happened for O.J. Simpson, whose acquittal was, in large part, the result of a receptive, if not partial, jury. But the Simpson trial took place in a different century under far different circumstances, where there was no live video of the alleged crime.
In the time of George Floyd, social media is ubiquitous and news instantaneous. Jurors have the internet and smartphones. During a pandemic quarantine, they have more information at their fingertips than journalists had in 1995.
Which is not to say that a jury couldn’t—or wouldn’t—acquit one or more of the officers charged with aiding and abetting if the defense can make the case. Except for Chauvin, there may be sufficient evidence to support a finding that the officers were not principal actors, and a good attorney will strive to paint a sympathetic picture of a rookie cop in over his head, caught between a rock and a hard place.
As for Chauvin, it will be near impossible to erase the image of his knee on George Floyd’s neck. Jurors who hear of his past interactions with suspects, evidence the court is allowing, must confront the fact that he may have known and understood exactly what he was doing. Could they be convinced that he was simply doing his job, using reasonable, authorized force to restrain a suspect resisting arrest?
Whether jurors reach their verdict after listening to the trial testimony and seeing the evidence or were ready to convict before being empaneled, the outcome will be etched in the history books.
An Uphill Battle
When I worked on high-profile cases years ago, I had blind faith in the jury system and believed that we could win with the right defense. Over the years, I have learned to appreciate the complexity inherent in representing notorious and celebrity defendants. Today, I would be far more realistic about the challenges inherent in these cases.
Attorneys representing Chauvin and the other officers know that their clients may have already been tried and judged—in the media, in homes all across the country and by protesters in cities around the world who gathered at statehouses and in public squares to call for justice.
The Floyd defense attorneys must work harder than ever, through a decidedly uphill battle, to make the case for their clients, to change the predisposed minds of jurors. That work starts even before voir dire. Can the officers charged with George Floyd’s killing get fair trials? It is entirely possible, but only if, by some sleight of hand, the defense picks an impartial jury that actually listens before it judges.
This column does not necessarily reflect the opinion of The Bureau of National Affairs,Inc. or its owners.
Lara Yeretsian is a Los Angeles criminal defense attorney and principal of Yeretsian Law. She worked on the legal teams defending Michael Jackson, Scott Peterson, and other high-profile criminal prosecutions.