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Floyd Family Settlement Among Grounds for Chauvin Appeal: Q&A

April 21, 2021, 10:01 AM

From the beginning of the prosecution of the former Minneapolis police officer who killed George Floyd, defense lawyer Eric Nelson laid out numerous paths to appeal the conviction—from the viral nature of the video of Floyd’s death to comments by a member of Congress as the case went to the jury.

While some are the sorts of legal issues any defense lawyer might pursue in a high-profile case, the trial of Derek Chauvin took some unusual turns from the start of jury selection. Here’s a look at some of the issues that could conceivably lead to trying Chauvin all over again:

Did the city of Minneapolis sabotage the case by announcing a record $27 million civil settlement with Floyd’s family on the eve of the trial?

Judge Peter Cahill was frustrated at the city’s decision to announce the settlement right before the criminal trial began. Two jurors were dismissed after they admitted the news affected their perception of the case. But Cahill said he was satisfied, after re-interviewing the jurors, that the rest of the panel could be impartial.

Still, the defense will be able to argue that “anyone aware of that settlement (which is likely everybody) would believe that the city made its own determination that Chauvin was clearly responsible for the death of George Floyd,” Julie Rendelman, a defense attorney in New York, said in an email.

The judge repeatedly elected not to sequester the jury. How likely is that to be questioned by a higher court?

LeRoy Pernell, professor of law at Florida Agricultural and Mechanical University, predicted appeals courts would give Cahill a wide berth. “Even if someone wants to second guess the judge on this, you’re going to have to show some level of prejudice. Somehow that prejudice is more than just harmless error,” he said.

John J. Farmer Jr., a law professor at Rutgers University and the director of the Miller Center for Community Protection and Resilience, said appeals over sequestering are “almost required for the defense lawyer to make,” adding that they’re “almost never granted.”

But Nelson is certain to point out that Cahill didn’t even question the jury after another Black man, Daunte Wright, was fatally shot by police in a city suburb during the trial—while rejecting another request for the panel to be sequestered.

“The defense would argue that the constant protests outside the courtroom along with the publicity surrounding the recent Daunte Wright case made it impossible for the jury to make a decision based solely on the evidence in the courtroom,” Rendelman said.

Could Maxine Waters end up undermining the guilty verdict?

Just as the jury began deliberations, Nelson pleaded with Cahill to declare a mistrial over massive media and public attention during the proceedings, particularly noting comments by the California congresswoman urging protesters to “get more confrontational” if Chauvin wasn’t convicted. It raised the question of whether Waters crossed a line into intimidating the jury.

While Cahill rejected the request, he said Waters may have given the defense something to work with on appeal, though he added, “A congresswoman’s opinion really doesn’t matter a whole lot.”

What other legal issues could arise?

Cahill nearly declared a mistrial just before closing arguments, when the prosecution attempted to introduce what it call new evidence on the cause of Floyd’s death. Cahill held prosecutors to a very narrow line of questioning, after they also raised some eyebrows among experts by asking legal questions of a pathologist testifying about Floyd’s cause of death.

“When you have an expert, you have to be very careful in not having that expert answering the question the jury will ultimately have to answer. A couple of times they went one question beyond as to inquire as to that ultimate question,” said Tamika McKoy, a criminal defense attorney and former prosecutor who also does legal analysis for ABC News.

To contact the reporter on this story: Bernie Kohn in Washington at bkohn@bloomberglaw.com

To contact the editor responsible for this story: Andrew Childers at achilders@bloomberglaw.com

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