*Episode published 3/10/2021

Elie Honig:

Hi everyone. Every Friday on Third Degree, I talk with a rotating cast of some of the nation’s top law students about breaking legal news, compelling cases, and what it means to lead a life in the law. Those Friday conversations will be part of the CAFE Insider membership starting next week. The Monday and Wednesday episodes will continue to be available for free in this feed. CAFE insiders enjoy access to exclusive content, including the CAFE Insider podcast co-hosted by Preet Bharara and Anne Milgram, audio essays from CAFE’s slate of contributors, including me, bonus content from Stay Tuned and Doing Justice, live events, and more. You can try out the membership free for two weeks, and for a limited time, get 50% off the usual price for an annual membership. Just head to cafe.com/insider, that’s cafe.com/insider, and use the code justice. And now onto the show. From CAFE, this is Third Degree, I’m Elie Honig.

We should not be calling this the George Floyd trial. I’m not the only one, or the first one to note this, but it’s right, and I agree. This is in fact the trial of the four former Minneapolis police officers who allegedly killed George Floyd. It’s the state of Minnesota vs. Derek Chauvin, Tou Thao, Thomas Lane and J Alexander Kueng. George Floyd is not on trial, and if this trial is done right, it’ll focus on the actions of those four charged defendants and what they did to George Floyd, that’s what’s at issue here.

Now, there has been and will be plenty of smart and insightful commentary about the broader social implications of this trial. It’s a trial about criminal justice and policing and race, and it’s impossible to overstate how important this all will be, and ultimately the implications of this trial will emanate from the verdict. This is only one trial, but think about the repercussions of the outcome, guilty, or not guilty, an awful lot hangs in the balance, even beyond the personal liberty of the four charged defendants. So what I want to do here is focus on the trial itself. This is right in my wheelhouse, as a prosecutor, I tried a lot of cases, I supervised many more. And so what I’m going to do is throughout this trial, bring you into the well of the courtroom and behind the scenes to try to explain to you what’s happening and how both sides are approaching this tactically and strategically in the courtroom. So let’s jump right in.

First of all, severance, what do I mean by this? Now in any multi-defendant case, there’s always a legal battle about how you group the defendants for trial. We have four defendants here. Now, generally prosecutors want to try all the defendants together at once, while defense lawyers usually want their clients to each be tried individually, separate from their co-defendants. I fought this battle all the time as a prosecutor, I almost always wanted to try as many defendants as possible. I once tried five defendants together in a human trafficking case. Several other times, I tried three or four defendants together at once in mob cases. Why? What’s the strategic advantage to the prosecutor? First of all, efficiency. Look, it’s a ton of work to do one trial, nevermind two or three or four, but also every successive trial gets harder for prosecutors because your witnesses have already testified, and there’s just that much more fodder for cross exam in the future.

So if your witness says something just slightly different one-time than the prior time, playing on him getting attacked the second time. The other big thing is you want, to the extent possible, to be be able to show the jury the entire scope of the criminality. It just hits a jury harder, viscerally. Now, in the Chauvin case in Minnesota, we had an interesting sequence. The prosecutor asked to try all four defendants together at once, and the defendants wanted to all be severed and tried separately. Like I said, that’s standard, you see that all the time. And at first the judge, judge Peter Cahill sided with the prosecutors. He said, we’re going to have one trial for all four defendants. But then in January, the judge changed his mind. He said, first Derek Chauvin will be tried alone, and then the other three will be tried together in group two.

Now the judge said the reason for his change of heart was COVID. It would be too crowded in the courtroom to try four people at once. I got to say, that seems a little suspect because the original ruling that all four would be tried together was made right in the heart of COVID. So what’s happening here? Why did the judge change his mind? Maybe there’s a bit of strategic positioning going on by the judge here, and here’s what I mean. Without question, the prosecutors in this case have a stronger and more straightforward case against Derek Chauvin. He is the police officer who put his knee into George Floyd’s neck for eight minutes and 46 seconds. The prosecutors have a trickier case versus the other three defendants, the other three police officers who were on the scene. Derek Chauvin physically snuffed out George Floyd’s life on video, we’ve all seen that video, but the trial against the others will depend on what they did, or did not do around the periphery.

And acquittal of Derek Chauvin, I think it’s uncontroversial to say, would be much more of a public outrage. So perhaps the judge is thinking, let the prosecutors focus on Derek Chauvin first alone, let them do their strongest case first. If Chauvin gets convicted, that’ll be very important in the public view, and then let the prosecutors try the other guys after. That case is more complicated, it may take longer, and if it ends up that there’s no convictions in that case, it may be more palatable to the public and to our notions of justice if Derek Chauvin has already been found guilty. Second, venue. Now this case will be tried in Minnesota state level court in Hennepin County, which is where Minneapolis is located.

Now, in this case, as sometimes happens, the defendants actually sought to move the trial to another location, to another County within the state of Minnesota. Now, the Minnesota rule say the case ought to be tried where the charged crime occurred, but it can be moved if a fair trial is simply not possible. And the defense argument here was there’s just been too much publicity, too much spotlight in Hennepin County, and it needs to be moved. Now, the judge denied that motion. I think that was absolutely important and the right thing to do. He said this trial is staying right here. Although the judge did warn local public officials, he said, your public commentary might push me towards relocating this, it hasn’t come to that. Now, why is it the right call? First of all, the crime happened in Hennepin County, George Floyd died in Hennepin County. The case should be tried in Hennepin County. That’s important for the legitimacy of the verdict itself.

And let’s just say it straight here, the jury pool in Hennepin County home of Minneapolis is far more diverse racially than any other County in Minnesota. Hennepin County is the most populous in Minnesota, and it’s also the most racially diverse, about 13 and a half percent of the County is African-American. If you look at the rest of Minnesota, only one other County is even over 10%, 47 counties are under 1% African-American population. So to move this trial to another County would vastly increase the chances of an all white, or nearly all white jury, and would not be representative of the population where this crime occurred. And that would cast serious public doubt over the legitimacy of any verdict, either way.

The third big thing happening right now is jury selection. Now that’s underway this week and it will continue until they narrow the pool down to 12 jurors, plus four alternates who fill in if one of the original jurors get sick, or can’t continue on the case. How important is jury selection? When I was a young prosecutor, a legendary defense lawyer in New York City said this to me, and I always remembered it, “Jury selection isn’t just important, it’s everything. It’s the whole ball game, because once the jury is seated, the fate of that case is sealed.” Now, even under normal circumstances, jury selection is tough. And as a lawyer, you get to learn a few facts about each person, but you’re trying to determine, to figure out, to extrapolate if they can be fair and impartial, and if they’ll favor your side’s view of things, that is difficult in any case, nevermind a case where everyone in the world has heard of this, and many people hold very strong opinions heading into the trial. This is important to remember.

The goal of jury selection is not necessarily to find 12 jurors who’ve never heard of this case, can you even imagine? I’d have serious doubts about a person who hadn’t ever heard of this case. The goal is to find 12 jurors who can be fair and impartial, and decide only on the evidence in the courtroom, not on anything they’ve already seen in the media, or read in the papers, or anything else. So what are the parties looking for here? I think if you ask both sides, officially their answer would be the same. I think both the prosecutors here and the defense lawyers for Derek Chauvin would say, we just want jurors who are objective and fair and impartial. And I think that’s true, but what’s also true is this, the lawyers want to win, it’s their job to win. And they want jurors who are going to be not only objective and fair, but objective and fair in their view, in their favor.

Prosecutors are going to be looking for somebody who’s willing to convict a white, former police officer for killing a black man. And the defense lawyers are going to want jurors who will be reluctant to do just that. That’s simply reality. Now, few interesting wrinkles here. This case involves a written questionnaire. Now, sometimes courts will use these written questionnaires in high profile cases, I’ve done a handful of trials that have used them. This one though is extraordinarily detailed. This questionnaire is 16 pages long. Not only does it ask each juror for his own personal background, but it ask questions like this. What have you learned about this case from media reports? Do you have any feelings about any of the parties in the case? Do you have any feelings towards Black Lives Matter, towards blue lives matter, towards the police, towards the criminal justice system? Did you participate in any protests? Do you have any views either way of the protests? Do you know somebody, or did you lose property in the protests? It covers about every possible scenario you could think of.

So what’s happening now in the court is the in-person questioning of these potential jurors. Lawyers call this the voir dire process. Now the written questions are important, but the lawyers also need to see the person live. It’s so important from the lawyer’s perspective, you are trying to gauge is this person being truthful? I remember you would scrutinize every little thing about a jury. You look at how are they dressed? Does he or she look bored or interested? You’re weighing all that stuff in your mind as the lawyer.

What happens at that point is the parties can ask the judge to strike jurors for cause, meaning there’s some demonstrable reason why this person can’t, or won’t be impartial, or can’t, or won’t judge this case only on the evidence in the courtroom. So when the lawyers make these motions to strike jurors for cause, it’s up to the judge. And then the final stage is what we call peremptory strikes. Now the defense lawyers in this case will have 15 of those strikes and the prosecutors will have nine. And what these are, are strikes that each side can use to remove jurors for almost any reason, it can be anything, but it cannot be based on any constitutionally protected factors. So you cannot use those strikes based on a juror’s race, or gender, religion, ethnicity, et cetera. But they are very broad. They are very valuable. The parties will try to save those strikes and get rid of as many jurors as they don’t like as possible.

Sometimes people do really want to get on a high profile jury. What I was always taught, and it’s true in my experience is, as a lawyer, if you have somebody who’s too eager to get on a jury, you don’t want them on that jury. Now, look, there’s no perfect way to detect this. You can’t see into the minds and the hearts of these potential jurors, but the process itself is rigorous and it generally works, and in any case, it’s the only system and the best system that we’ve got. So we’ll be watching this trial closely and like with the impeachment trial, I’ll try to save you some time, I know you’re busy in real life, so I’ll give you updates in these 10 minute formats throughout this trial of Derek Chauvin and the other Minnesota police officers in the death of George Floyd. Please keep sending us any questions, comments, or thoughts at letters@cafe.com. Thank you for listening to this episode of Third Degree. Talk to you again on Friday.

Third degree is presented by CAFE Studios. Your host is Elie Honig. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The audio and music producer is Nat Weiner. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Jake Kaplan, Geoff Isenman, Chris Boylan, Sean Walsh, and Margot Maley.