How do you go about picking a jury in a high-profile case?
Slowly.
So I was surprised to see that three jurors were selected on the first day of the Derek Chauvin case in Minneapolis this week.
Mr. Chauvin is the former police officer accused of killing George Floyd last May. Three other officers,J. Alexander Kueng, Thomas Lane and Tou Thao, have also been charged in connection with Mr. Floyd’s death.
There is no question that Mr. Floyd died in police custody.
At issue is whether the officer’s caused Mr. Floyd do die, and, if they officers did so, whether they are criminally responsible for his death.
Almost everyone was quick to condemn Mr. Chauvin, even before the full bodycam videos of the event were made public. Graphic minutes of Mr. Chauvin with his knee across the back and side of Mr. Floyd’s neck as Mr. Floyd said, repeatedly, “I can’t breathe” are disturbing to watch.
But the totality of the circumstances leading up to Mr. Floyd’s death will be the subject of a trial. Jurors will be asked to set aside biases and prejudices and to base their verdict solely on the evidence.
How do you get a jury that is unbiased after a summer of protest, billions of dollars of property damage, and a star-studded send off for Mr. Floyd worthy of a rock star?
During jury selection, lawyers will get to ask jurors questions about how much they think they know about the case. The standard is not whether jurors have heard nothing about the matter. It would be hard to find a resident of the community who was not aware of the riots and arson in Minneapolis last summer.
The standard for selection as a juror is whether a person can set aside what they have heard and regard the evidence with an open mind as a fair and impartial juror. Many folks won’t be able to do that. But a surprising number of people will be up to the task.
I spoke to a good friend of mine, a fellow trial lawyer, about the jury selection in Mr. Chauvin’s case. He and I have tried police misconduct cases alleging wrongful death against officers involved in the deaths of arrestees. We both believe that, if a jury follows the law, Mr. Chauvin will likely be acquitted.
“Once the jury sees Mr. Floyd claiming he couldn’t breathe when he was in the back of the police cruiser jurors will understand that emotional detainees often say these things. How’s a cop supposed to know when it’s serious?” I said.
“What are you talking about?” my friend asked.
He hadn’t seen the bodycam videos of the minutes leading up to Mr. Floyd’s death.
Yes, Mr. Floyd was on the ground for eight of so minutes before he died. But for longer than that he complained that he was claustrophobic, scared, that he didn’t want to get into the police car, that he wanted someone to sit with him, and, yes, that he couldn’t breathe, even when the police had only nominal contact with him. In sum, Mr. Floyd was emotional, wrought, even hysterical when the officers arrived, and long after they began efforts to calm him down. Nothing worked.
And it had nothing to do with his race.
Making this case into a racial narrative was the grand lie of 2020. Talk to any officer who has patrolled a street for more than a year or so, and will learn the difficulty safely taking a man who is either deeply disturbed or intoxicated – or both – into custody. Detainees in such cases come in all races and both genders.
I suppose officers could have adopted the “catch and release” theory of law enforcement, and simply released a man they had reason to believe had distributed counterfeit money just because he was too much trouble. That’s a theory of law enforcement we can adopt.
But the current law permits officers to use reasonable force to take a man into custody. Officers are trained to use force. In this case, they used that training.
And Mr. Floyd died.
It was tragic and unnecessary. Although I have my doubts about whether any crime was committed. I’m not sure what more officers could have done when faced with an obviously disturbed man; there’s evidence of the sort of injury that would have taken place had Mr. Chauvin’s placement of his knee on Mr. Floyd’s neck caused death – none. Proving medical causation takes more than a sound byte and a flash of video.
The officers had no way of knowing, on the scene, that Mr. Floyd had enough fentanyl on board to kill him. A medical examiner learned that much later.
So jurors must be asked, one at a time, about bias.
As reported in USA Today, on opening day of jury selection attitudes toward “Black Lives Matter” and “Blue Lives Matter” movements became proxies for bias. Some folks think that any time an officer looks at a black man, it’s racism; others think that officers can never err. Neither are fit for this jury.
I’ve picked many juries in high-profile cases, although none so high-profile as this. You fear, as the process begins, that no one will be able to come to the case with an open mind. You learn soon enough that everyone problems of their own. Most jurors want to do the right things for the right reasons.
My hunch is that such jurors can be found in this case.
Another friend told me he was worried. Would Minneapolis once again burst into flames if there were an acquittal? Perhaps it will. But if it does, it will represent a failure not of the jury system but of reason itself. It will be more mob justice if a compromise verdict is reached merely to prevent violence by third parties. We’re better than that.
Twelve jurors will spend three weeks viewing all of the admissible evidence in this case. They will learn why officers responded, why they sought to question Mr. Floyd, how Mr. Floyd reacted to the officers’ questions, how officers were trained to respond to a man behaving as did Mr. Floyd.
The jurors won’t hear a word about racism, systemic or otherwise, because this isn’t a race case. It’s an ordinary case about police responding to a routine call and then being faced with a situation they had scarcely enough training to control. The jurors will also hear how common it is for detainee to cry “police brutality,” or some such, every time an officer lays a hand on them.
Activists wasted no time in making this a case about “systemic racism,” and, within days, videos of the moments before Mr. Floyd’s death were flashed around the world. “I can’t breathe,” words uttered by Mr. Floyd became a rallying cry. I don’t know how many of the protestors watched the full-length police body cam videos before taking to the streets.
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