• Transcript
  • Show Notes

In this episode of CAFE Insider, Preet and Anne break down the multiple investigations into sexual harassment allegations made against New York Governor Andrew Cuomo, and the jury selection process in the trial of Derek Chauvin, the former police officer charged with killing George Floyd. 

We hope you’re finding CAFE Insider informative. Email us at [email protected] with your suggestions and questions for Preet and Anne. 

This podcast is produced by CAFE Studios. 

Tamara Sepper – Executive Producer; Adam Waller – Senior Editorial Producer; Matthew Billy – Audio Producer; Jake Kaplan – Editorial Producer

REFERENCES & SUPPLEMENTAL MATERIALS

Doing Justice, CAFE

CAFE Live Event: Heather Cox Richardson and Joanne Freeman

ANDREW CUOMO

NY Penal Law §130.52 – Forcible Touching

NY Penal Law §130.60 – Sexual abuse in the second degree

“Voters Say Cuomo Should Not Resign, 50-35%,” Siena College Research Institute, 3/15/21

“Schumer joins congressional Democrats’ call for Cuomo to resign,” CNN, 3/14/21

“Sexual Harassment Claims Against Cuomo: What We Know So Far,” NYT, 3/13/21

“Cuomo Never Let Me Forget I Was a Woman,” New York Magazine, 3/12/21

“For Some Women, Working for Cuomo Is the ‘Worst Place to Be,’” NYT, 3/12/21

“Cuomo refuses to resign amid Democratic uproar over sexual harassment accusations,” WaPo, 3/12/21

“Referring Cuomo’s sexual assault allegation to Albany police ‘highly unusual,’” Albany Times Union, 3/11/21

Maggie Haberman tweet, 3/15/21

DEREK CHAUVIN

MN Stat §609.19. Murder in the second degree

MN Stat §609.195. Murder in the third degree

MN Stat §609.205. Manslaughter in the second degree

State of Minnesota v. Derek Chauvin, MN Supreme Court, order, 3/10/21

State of Minnesota v. Derek Chauvin, MN District Court Fourth Judicial District, order, 3/13/21

State of Minnesota v. Mohamed Noor, MN District Court Fourth Judicial District, jury instructions, 4/29/19

Judge Peter A. Cahill, Minnesota Judicial Branch

“What we know about the jurors selected so far in Derek Chauvin’s trial,” CNN, 3/16/21

“Derek Chauvin’s defense asks to delay and move trial in light of Minneapolis settlement with George Floyd’s family,” CNN, 3/15/21

“City reaches $27 million settlement agreement in civil lawsuit filed by George Floyd’s family,” City of Minneapolis, 3/12/21

“Why William Barr Rejected a Plea Deal in the George Floyd Killing,” NYT, 2/10/21

BUTTER-GATE

“Canadians Try to Solve the Enigma of Hard Butter,” NYT, 2/25/21

How Do You Select Jurors for a High-Profile Trial?

Jury selection in the Derek Chauvin trial hit a roadblock when news broke of a $27 million settlement in the George Floyd wrongful death lawsuit. Could this taint the jury?

And, last week, the New York State Assembly launched an impeachment investigation into the multiple allegations of sexual harassment against New York Governor Andrew Cuomo. This announcement comes on the heels of the investigation launched by New York Attorney General Letitia James’ office. Preet and Anne discuss the potential challenges presented by the two concurrent investigations — and how they would approach the matter if they were in the investigators’ shoes. 

Meanwhile, jury selection continues for the trial of Derek Chauvin, the former police officer charged with killing George Floyd. Preet and Anne break down the charges against Chauvin and the challenges of selecting jurors for a high-profile trial. 

3/16/2021

Preet Bharara:

From CAFE, welcome to CAFE Insider.

Preet Bharara:

I’m Preet Bharara.

Anne Milgram:

I’m Anne Milgram.

Preet Bharara:

How are you, Anne? Guess what’s coming up? St. Patrick’s Day.

Anne Milgram:

Yes, tomorrow. It’s a big day in our household.

Preet Bharara:

What will you be doing? What will the Milgram household be doing?

Anne Milgram:

Well, I am trying to find green cupcakes or cookies for tomorrow. Of course, I could make them, but I’m going to an easier-

Preet Bharara:

You lost them in your house somewhere.

Anne Milgram:

Yeah. No, I need to buy them in New York City.

Preet Bharara:

Chicken under the bed.

Anne Milgram:

They must be somewhere nearby where I could buy them. Yeah. You know what else we’re going to do? Tonight, we’re going to do our March Madness basketball bracket-

Preet Bharara:

Nice.

Anne Milgram:

… or maybe tomorrow night. I’m not sure. We’re doing it this week obviously. How about you?

Preet Bharara:

Did you do anything for St. Patrick’s Day last year? I guess we were shut down, right?

Anne Milgram:

Yeah, I mean, I think we cooked corned beef and cabbage and potatoes and made some soda bread maybe, but yeah, we had just shut down. I know we usually go to a St. Patrick’s Day parade in the town where my mom grew up, South Amboy, New Jersey, but that was canceled last year and this year as well, of course. So, hopefully next year, we’ll be back at it.

Preet Bharara:

Yeah, that’d be great. So, now for the worst segue of all time. Can we talk about the continued the investigation into the Governor of New York, Andrew Cuomo?

Anne Milgram:

Yeah.

Preet Bharara:

So, since last we spoke, there had been additional allegations. There has been additional calls for his resignation. Virtually, the entire Democratic delegation in New York, both members of the Senate on Friday afternoon, Senator Gillibrand and Senator Schumer along with… I’ve lost track now. It’s something like 14 or 15 house members have called on him to resign.

Preet Bharara:

I guess, first, we should talk about some of the additional allegations. What do you make of this reporting, which by the way is not fully confirmed? I don’t think we have identities, but there are additional women who have claimed, contrary to what Andrew Cuomo has insisted upon that he never touched anyone, that he actually engaged in unwanted groping and touching of a young woman in the employee of the Governor’s Office. What’s your reaction to that?

Anne Milgram:

So, there are two new allegations that have surfaced in the past week. One is a former state house reporter, a woman named Jessica Bakeman who wrote a New York Magazine story saying that Cuomo touched her inappropriately while posing for a photograph and that he made a number of comments to her like, “I thought we were going steady,” and sexual banter almost. One of the things I thought was notable about that… Again, she didn’t work directly for him, but this goes more to the question of, “Was there a culture and a hostile work environment surrounding the Governor?”

Anne Milgram:

She wrote, “It’s not that Cuomo spares men in his orbit from his trademark bullying and demeaning behavior,” Bakeman wrote, “but the way he bullies and demeans women is different.” She goes on to talk about how it’s just a form of his exerting power and control. She said she was embarrassed by what happened. I think that that is a relevant allegation that the investigation should look into it, because again, it is consistent with a number of the other things that we’ve heard people say.

Anne Milgram:

The second one, which is the one you’re talking about now, I think, is more complicated, because it seems like there is a young woman who had made an allegation that Cuomo had basically groped her, essentially, in the Governor’s Mansion. She’d been called in to assist him with his phone or with technology. Remember, we also heard that with another one of the young women who worked in the Governor’s Office that the Governor had asked for help with his telephone.

Anne Milgram:

But in this specific instance, it’s complicated, because the woman, it appears, is represented by a lawyer. That complaint with the Governor’s Office was then sent to the Albany Police as a potential sexual assault, because again, the allegation is groping, but the woman has not indicated that she wants to cooperate with the police and go forward and that her identity is not known. It hasn’t been confirmed by any other news outlets. The police have said that they received a referral from the Governor’s Office.

Preet Bharara:

Do you find that interesting? Do you find it interesting that the Governor’s Office itself made the referral to the police department?

Anne Milgram:

What was striking to me about it is that it’s clear that there’s a significant issue for investigation as to whether or not the governor’s senior staff followed the law in terms of doing investigations when allegations of sexual harassment were made. So, it appears that there’s a real question as to whether or not they did. So, here, it’s almost the opposite, which is basically saying-

Preet Bharara:

They’re going above and beyond, do you think?

Anne Milgram:

Exactly, exactly. I think they’re covering themselves right now to basically say… Particularly at this moment, it’s very complicated for them. Even if they had done everything right, it’s very complicated because the public nature of this, which technically would fit under misdemeanor sexual assault, you don’t see cases like that frequently charged, but it could potentially constitute a crime. Again, I don’t think that’s going to happen. It feels to me like that’s not going to come about.

Preet Bharara:

There has been reporting. Again, it’s not confirmed, it’s just reporting. But it’s this last allegation with the identified woman that put a lot of people in the congressional delegation over the top. So, if that’s the case, I think it’s something to watch. I think the allegations, if you want to separate them into two categories, one where it’s languages by the governor made people feel uncomfortable.

Preet Bharara:

The second is unwanted actual touching. It’s separate apart from what you think the distinctions are in the law or in propriety. The governor himself has made the case, insistently, that the one thing he did not do was touch anyone inappropriately. So, when we see what the report says that Joon Kim and his colleague are working on, sometimes people hang themselves with their own insistence. That’s another reason why I think that’s quite important.

Anne Milgram:

I agree with that. I also think it’s worth just stopping to say that both would be forms of sexual harassment. One could potentially also be a form of crime, forcible touching or sexual assault, but they both fall in that broader bucket of treating women, subjecting them to unwanted, unwelcomed conduct because of their gender or their sex. So, I think your point is also well taken about Cuomo has admitted to one thing and said, “Well, I didn’t intend it to be interpreted the way it was.”

Anne Milgram:

But the other piece he has adamantly denied and repeatedly denied… I wonder also, Preet, if you were doing this investigation, I mean, I think you would not only look at these women who have come forward and made allegations. I think you would also ask the question of, “Are there any employees with whom the Governor had what he would term a consensual relationship?” So, I think he has denied it.

Preet Bharara:

Well, he answered that question invasively, right? I’m sorry. Did you hear his press conference?

Anne Milgram:

No, I saw the statement by one of his senior people who said he had not had a relationship with an employee, but again, how you define relationship may also be subject to interpretation. What did he say at the press conference?

Preet Bharara:

When he was asked the question, “Did you have what you perceive to be a consensual relationship with any of these women?” and my recollection is… I don’t have it in front of me. So, forgive me if I get this wrong. At first, he was evasive about the question. And then he said something like, “I have not had an inappropriate relationship with anyone.” Thereby leaving the door open to there having been a consensual relationship, which-

Anne Milgram:

Or interactions, right?

Preet Bharara:

… I don’t want to speculate about that.

Anne Milgram:

Right, but I think, look, it may also just be something he doesn’t understand. But if you’re the governor of the state and you have a relationship with an employee, there is an implicit problem in that, someone who reports directly to you. If they don’t report directly to you, I would have encouraged him to go through an ethics person, get an ethics opinion on whether he could have a relationship with someone in state government, but someone in the governor’s office would be deeply problematic. Look, I think that these are just questions for the investigation. They’re things I would look at, but your point is well made, that he’s drawn such a distinction that this could end up being a challenge.

Anne Milgram:

I mean, one of the things that happened last week before, I think, Senator Schumer and Gillibrand and a lot of the other members of the House delegation, not all of the Democrats, but a significant number called for Cuomo’s resignation is that assembly in New York State said that they would open an impeachment investigation, which is not bringing impeachment charges yet. It’s basically opening an investigation into that.

Anne Milgram:

What I wondered about that as a potential trigger is that that investigation, they could call witnesses. They could subpoena documents. I mean, the investigation being done by the State AG Tish James right now, there will be a public report at the end. But right now, Joon Kim and Anne Clarke are doing interviews behind closed doors, right? So, they’re not releasing public information right now, but if the assembly did it, it would be public hearings, right? So that really changes some of this dynamic, I think.

Preet Bharara:

Well, I guess they could choose to do it one of a number of ways. I remember we saw in the first impeachment proceedings against Donald Trump at the federal level, first, people like Daniel Goldman and others conducted behind closed doors depositions, interviews with witnesses, and then some subset of that became part of public hearings. So, they could choose to do it that way. What you mentioned raises other questions as well.

Preet Bharara:

With the State AG investigation being run by outside lawyers, Anne Clark and Joon Kim, as you mentioned, do they ask the assembly to hold off? Sometimes it’s the case that in criminal matters, you don’t want there to be public hearings going on at the same time and witnesses going into multiple interview sessions and perhaps contradicting themselves. You want a clean record.

Preet Bharara:

I don’t think here, they have a basis to tell them to stop. I think it would look unseemly to tell them to stop, but it’s not a great thing if you’re conducting an outside investigation and trying to be thorough if there’s some other body that’s doing the same thing, plowing through the same ground, asking for the same documents, asking questions of the same witnesses. It creates a bit of a mess, doesn’t it?

Anne Milgram:

Yes, I very much think that. I agree if it was criminal, you would ask that others hold. But I also agree that because it’s civil and it’s really an employment investigation that Joon Kim and Anne Clark are doing, I don’t think you could ask the assembly to stop. Remember the assembly has oversight authority over Governor Cuomo and their investigation would also include nursing homes, the nursing home scandal. So, it’s broader.

Preet Bharara:

I have a question for you, Anne. There’s reporting from the New York Times and again, emphasizes just reporting, in which they did a lot of interviews of a lot of people who worked in the Governor’s Office. This is what the report says, “In interviews over the past week, more than 35 people…” That’s a lot of people. “… more than 35 people who have worked in Cuomo’s executive chamber describe the office as deeply chaotic, unprofessional and toxic, especially for young women. They said for the most part, they did not personally witness overt sexual harassment.”

Preet Bharara:

But here’s another quote from the article, “But many said that they believe that Cuomo and other officials seemed to focus on how employees looked and how they dressed. Twelve young women said they felt pressured to wear makeup, dresses, and heels, because it was rumored that was what the governor liked.” My questions to you are A, “What do you make of that?” B, do you think that Anne Clark and Joon Kim will want to or will need to interview all those people, dozens and dozens or perhaps even scores of people to complete their investigation?

Anne Milgram:

Well, let me start with the second question first. I think the answer to that is yes, that I would. If I were doing the investigation, I would reach out to all of them. Some of them might be willing to cooperate. Some might not. I’ve had this experience with high profile sexual harassment matters. There are people who will talk off the record or anonymously with the press that will not talk with investigators, but yes, I would reach out to them, because I think the element of that statement that would raise questions for me and that I would want to understand what happened would be this idea that there was pressure put on young women to dress a certain way in order to please the Governor, right?

Anne Milgram:

Again, that would be treating someone differently based on their gender. It could be unwelcome and unwanted, right? So, I would want to understand more about that. I would also want to understand who conveyed that to these young women, right? Because again, when you start thinking about, “Is there a hostile workplace?”, the culture, you might be more hesitant to report to a senior person who’s told you… Again, this is a hypothetical. I probably shouldn’t even do it, because we really don’t know the facts here yet.

Anne Milgram:

But you can imagine a situation where there’s an intermediate boss between a senior boss and you. The intermediate boss tells you that you have to dress a certain way. You have to act a certain way for the big boss. And then something happens between you and the big boss that makes you feel uncomfortable. How comfortable would you feel going to that senior person to make an allegation, right? So, again, it goes to some of these questions of culture. Also, you’d want to ask these young women, if they’d worked in the Governor’s Office, what they saw, what they experienced, whether any of this had happened to them. That’s definitely relevant.

Anne Milgram:

On the second question, Preet, I mean, I would be curious to know what you think, but the problem I have with articles like The New York Times wrote is that it’s super vague. Multiple people said, it’s chaotic. Well, chaotic workplace, I think we’ve all worked in them, not necessarily sexual harassment. So, I didn’t like the way it lumped all those things in together and lacked specificity. Look, again, I would look into this as an investigator, but I don’t know. Half of that sentence you read would just basically be a bad boss, not necessarily someone who had violated the law.

Preet Bharara:

Yeah, no, I agree with that. You have to be very careful about news reports. Sometimes these reports are wrong. Sometimes things get conflated and lumped in together, as you say. So, I think we need to be very careful, which is why when we talk about the reports, they’re meaningful. They tell you something. But until I think we see something in a public report, we have to be a little bit careful. The report does make me think that I should in my mind, revise a little bit the timetable, because if it turns out, there are scores of people to be talked to and even more documents and emails to be collected.

Preet Bharara:

The investigation might take a little bit longer than I think I had initially thought. But by the way, we should note also that whether or not they’ve reached all these other folks that are referred to The New York Times article, it’s going pretty quickly. One of the main accusers who we’ve already talked about, Charlotte Bennett, her lawyer put out a statement in the last couple of days saying that she met with investigators via Zoom for more than four hours.

Preet Bharara:

According to the lawyer, “She detailed her allegations of sexual harassment and provided the investigators…” Now, this is interesting. “… with more than 120 pages of contemporaneous records, as well as other examples of documentary evidence to corroborate her accusations against Governor Cuomo and his senior staff.” Four hours sound about right to you? that quantity of notes, is that unusual?

Anne Milgram:

I would say four hours or more. I’m not surprised at all by that. With a lot of the main complainants in the Mavs case, we were with them at least four hours, some a full day and some multiple times depending on how long someone’s worked in a place. Of course, you go through those documents together. So, you understand, “Who was emailing who? How did this conversation start?”, depending on what the documents are.

Anne Milgram:

What’s interesting to me about the documents will be we don’t know. Again, are those allegations that were made by the young woman to senior staff members about Cuomo? Are they emails or text messages from Cuomo to her? We don’t know the nature of those documents, but it strikes me as it’s going to be important that there’s a significant number of documents that the lawyer is saying corroborate what the young woman said.

Preet Bharara:

Can I read a little bit more from the statement of the lawyer? Because this is new information that I have not seen reported before. “One piece of new information that came to light today…” This is according to the lawyer. Sorry, I have to read this. “… was the Governor’s preoccupation with his hand size and what the large size of his hands indicated to Charlotte and other members of his staff,” presented without comment.

Anne Milgram:

Now, you’re going to ask me for a comment. I love it.

Preet Bharara:

Anne, you make comment.

Anne Milgram:

No comment. No.

Preet Bharara:

That’s an interesting thing to put in the lawyer’s statement. Can we just pause on that for one second? So, you represent a client. This is to geek out as lawyers for a second. You go in, and there’s a four-plus-hour meeting. You know that some of this information is going to come to light later. What’s the thinking in deciding to put in your statement, a provocative allegation like that into the public record?

Anne Milgram:

Look, here’s my view on these things. The investigators, the lawyers cannot ask the lawyer for the woman whose name is Debra Katz, who’s the lawyer. They can’t ask Debra Katz or the young woman not to say that they met with them. They’re entitled to go out and say it, but it isn’t helpful when you’re doing an investigation like this for the lawyer to go out and start dropping details like this. It feels like it’s intended to fan the flame.

Anne Milgram:

Again, the investigator’s job is to find out the facts of what happened. They’re not necessarily striving for a specific outcome. The outcome will be decided whether Cuomo was forced to resign. Is he impeached? They’re looking for the facts. So, it adds something that if I were the investigators, I wouldn’t have been thrilled to have had that out there. Now, that said, they totally can do it.

Anne Milgram:

One thing that could be a positive is that the investigators are looking for other women to come forward. The lawyer did say in the lawyer’s statement, “Look, if anybody else has information, we urge you to come forward.” So, it could be possible that reading that jogs the memory of another woman who said, “Yeah, it was weird. He always talk about his hand size, which I took as sexual innuendo, but I just disregarded.” So, maybe in that way, it becomes relevant, but I don’t know.

Anne Milgram:

I mean, obviously, the investigators would want to know about it. It might be something where the investigators would then say to other people they interviewed, at the end of the interview, “Did you ever hear the Governor mention X? Did her ever mentioned why?” and go through the litany of categories if he’s known to have said things repeatedly.

Preet Bharara:

There’s a few other weird things about how the Governor is defending himself. He said recently a couple of things that are strange. He invoked that this notion of cancel culture, which is bizarre to me and I don’t think helps his cause.

Anne Milgram:

I saw that. What do you think of that? Yeah.

Preet Bharara:

It’s an invoking of a phrase now that people want to use to deflect criticism from themselves or deflect accountability. So, because in some circles, this idea of cancel culture is viewed disapprovingly. If you find yourself in a position of trouble, you just say, “Oh, it’s cancel culture,” as if that’s a justification for what you did or that’s a proper criticism of what other people are doing. It’s silly.

Preet Bharara:

What’s happening with Andrew Cuomo based on the seriousness of the allegations has nothing to do with “cancel culture.” And then he also said to try to make himself a man of the people, he said, “I’m not part of a political club or the political club.” Andrew Cuomo has been governor for 10 years. His father was governor for three terms. He married a Kennedy. He was a cabinet secretary for Bill Clinton. Someone remarked recently, “He’s not just part of the political club. He is the political club.” So, I don’t know what that argumentation is doing for him.

Preet Bharara:

The other thing I would say is there were more people in the congressional delegation who are calling for Cuomo to resign now than there are in the general public. I think the polling is mixed on this. I get a lot of responses to things that I post on social media saying, “Well, why don’t we wait for the investigation? Let the investigation unfold.” I think there’s merit in that. I think it’s important to indicate to the public also that the investigation is not only important, so that the Governor gets a fair shot.

Preet Bharara:

It’s also important so that the victims get a fair shot. If there’s a premature closure to everything with these things hanging out there, I don’t think that works a proper fairness to the people who have made allegations, the people in the public think that they can just ignore, because they’ve not been confirmed by any investigation, right? So individual politicians can make up their minds about what has been conceded and what is enough to call for someone’s resignation. I respect that. Maybe I would also if I were a politician, but there was also good reason to say, “We want to make sure the investigation continues, comes to a proper conclusion and all of that be made public, so that we know what the truth is.”

Anne Milgram:

One thing I’ve been thinking a little bit about, and I do think it’s complicated. There’s a few things happening here. The first is you’ve got allegations about not disclosing the full number of nursing home related deaths, which are significant and important in the midst of a global pandemic. Then you’ve got these sexual harassment allegations that are now on two hands, right? So, it’s not one woman coming forward. It’s not two. You now have, depending on how you count it, six or seven women who are coming forward. Then you have a really significant difference.

Anne Milgram:

When I’ve done internal investigations, as a rule, they may be generated by a public report, but then they become quiet. So, you really are free to do the investigation. You have the time to do the work that’s needed. I’ve done them in a shortest, three weeks. The Mavericks investigation, we were in Dallas for three months. I think it was six months before we released our final report. Because he’s the Governor and because of the public nature of the allegations, that can’t happen.

Anne Milgram:

So, there is a real tension between this question of accountability and fairness and having the allegations vetted and also, questions about a governor who’s in the midst of these two very significant investigations during a global pandemic, the legislature asking about his ability to lead, particularly the New York State Legislature. So, I hear you. I think the best thing that can happen would be for this investigation to move incredibly quickly.

Anne Milgram:

Again, maybe I should amend what I said earlier that I would want to talk to all of the young women who talked to The New York Times and the Washington Post, but maybe the most important thing that the investigation can do right now is to figure out whether it can substantiate existing allegations and any of the new allegations that have come in and maybe even do it in parts, but it really is that time is essential here.

Preet Bharara:

The final thing I want to say about this because I’ve been seeing conspiracy theories and I posted this on Twitter myself, whatever you think of Andrew Cuomo, whatever you think of Donald Trump, Donald Trump has nothing to do with Andrew Cuomo’s woes in this. When I posted that, I saw a lot of people indicate suspicion based on the timing, worry that this is a ploy to get Andrew Cuomo to leave so that a future governor will pardon Donald Trump for crimes that might be brought against for criminal charges that might be brought against him by Cy Vance. I just want to say to folks, let’s not become like people who are supporters of Trump and believe every ridiculous conspiracy theory and judge Andrew Cuomo based on his own actions.

Preet Bharara:

So, the other case that is drawing national attention, as it should, is the trial of former officer, Derek Chauvin, who killed George Floyd. The jury selection process is going pretty quickly there. The trial was scheduled to begin on March 29th. Here we are on March 16th. Obviously, this might change even during the course of the day, but 9 jurors have already been selected. I think the goal is to have 12 plus, I think, 4 alternates. So, they’re going faster than expected, even though there’s been a rigorous vetting process, lengthy jury questionnaires, lots of questions about whether or not people can be fair, because the case has been so much in the news.

Preet Bharara:

There’s motion to delay the trial and maybe also change of venue brought again by the officer’s defense lawyers, because among other things and this is what I’ve been dying to ask you all week, just a couple of days ago, the City of Minneapolis announced a settlement with George Floyd’s family in connection with his death to the tune of $27 million. What that does to the jury pool, what that does to the fairness of the trial, I’ve asked you now compound questions, Anne. What do you make of the speed of jury selection, the settlement and the impact on the trial?

Anne Milgram:

I misjudged the speed that this would go out. I thought three weeks might not even be enough. So, I thought it would take longer. So, it is moving faster than I expected. I would attribute that to the judge who is as no nonsense as you get, Judge Cahill. I think he was a deputy when Amy Klobuchar who’s now a senator from Minnesota when she was the DA. He has a lot of experience as a prosecutor. He also has experience as a defense lawyer. Clearly, he’s described by his former law partners and others as extremely decisive, right? So, it’s very clear to me that he’s just moving through this quickly, but it is moving with speed. On the second point about the $27 million settlement, I wanted to ask you about this as well, because you could not-

Preet Bharara:

I asked you first.

Anne Milgram:

… pick. I know, I know. But you could not pick a crazier time to release that, which by the way, everyone should understand that these conversations would have begun shortly after George Floyd was murdered last May. So, it isn’t like this idea of there being a civil settlement between the city and the family of George Floyd, it wasn’t like this idea just happened last week. The family was represented, I believe, shortly after Floyd’s death.

Anne Milgram:

So, what my sense is and I’m curious to know yours is that the city understood that if you wait until after the trial, depending on the outcome of the trial, the settlement could change or there could be arguments that the settlement should be more. There could just be a lot of politics around the settlement. So, in an ideal world, it feels to me like you do it before a trial, I think, or you do it far after, but this right on the eve of trial felt really strange to me and probably not well thought through.

Preet Bharara:

Yes, that’s my initial reaction. You also worry about the overall fairness of the trial and how it infects the jurors, but it makes some sense, right? Settlements happen in cases on the eve of trial, but usually that settlement is in connection with the actual trial that’s taking place. This is a parallel thing, but it’s obviously very related, because there’s risk for both sides, right, to the extent you’re negotiating what the final numbers should be. I hate to be crass about it, because no amount of money is going to bring back George Floyd. But there is a settlement, it is about money.

Preet Bharara:

If the trial goes one way, the settlement will be for an even higher number. If the trial goes a different way, then the risk shifts to the other party and the settlement could be for a lower number. So, both sides have some inclination to want to finalize this before the criminal trial, because although the settlement and the trial are two separate distinct things running parallel, one has a bearing on the other.

Anne Milgram:

To be fair to the city, don’t you think they also probably would like to close this chapter as the case goes to trial?

Preet Bharara:

And do right by the family, right?

Anne Milgram:

Do right by the family. It’s the thing where it does make you scratch your head, because this is the thing where it wasn’t a secret when the trial was starting. You would think that the city and the city attorneys would have tried to have the case settled far in advance or at least a month or two ahead. The problem that they’ve created and again, it gave the defense an opportunity to stand up and say, “There was just a full round of press around a $27 million settlement. That settlement implies and fairly so that the city has accepted responsibility for wrongdoing. When you see a dollar sign like 27 million, it’s fair to assume that there’s an assumption of significant wrongdoing by the city.”

Anne Milgram:

So, that for a defense who’s saying, “I want to make sure my client gets a fair trial and that people don’t think he’s guilty before we start,” that’s the thing that you would want the ability to ask jurors about. Does the fact that the city paid $27 million change your view of whether or not he’s guilty or innocent? Can you put that aside? Coming to your last point, the judge is going to have to bring the jurors back to ask them about this.

Anne Milgram:

So, Judge Cahill said, when he was ruling, he didn’t immediately rule on this request to change venue or to push the trial back, but he said, “I wish city officials would stop talking about this case so much.” He’s agreed that the developments were concerning. So, again, you don’t want to make it more complicated for everybody in that courtroom. I think the city did that. Again, I’m not saying it was a mistake to get it done before the trial so much as the timing really puts everybody, I think, in a tough position.

Preet Bharara:

No, there’s another wrinkle. You and I talked about this last week. You made a great point with respect to this issue as well. That is, “Would the murder in the third-degree charge be reinstated?” Remember, prosecutors initially brought a third-degree murder charge. That was thrown out and went up on appeal. The prosecutors really want that charge. Even though it’s a lesser charge to murder in the second degree and the reason they want it in as we discussed, it may better fit with the evidence and it gives jurors a choice.

Preet Bharara:

Murder in the third degree, just to remind folks, is proven when someone “causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind without regard for human life.” You could be sentenced to imprisonment for not more than 25 years. You have the odd circumstance of the prosecutors asking for the letter surcharged to be in, not the defense lawyers.

Preet Bharara:

Suddenly, in the last few days since we last recorded this program, the Judge has reinstated the third-degree charge, which is interesting with respect to what the ultimate result will be, but it’s also interesting in connection with the discussion we were just having. You actually seated some jurors who were seated before they knew that there was this additional charge. That’s worrisome. There’s reporting that suggests that the prosecutors themselves have been worried that that should have been resolved before the seating of particular jurors.

Anne Milgram:

I would be worried. I think you probably would be too. Again, just so folks understand, you want to make sure that the trial, if Derek Chauvin is convicted, that the conviction stands, that there be no basis to argue that the trial has to be done over. For a variety of reasons, you always want that to be the case. I think even more so here with such a high profile and difficult case to try, right? I mean, difficult in the sense that I think it’s going to be emotional and hard for everyone.

Anne Milgram:

So, one of the things I would probably do and I assume that the prosecutors and the judge will do here is that they already have to bring back all the jurors. This is not ideal, but I would voir dire them on both this question of the civil settlement and also on adding murder in the third degree, because again, I think you want the record to be clean. You don’t want there to be any potential issues. People should understand there are always issues in trial. There are always appellate issues. There are always things that happen. But what you want to do is make sure there are as few as possible and that if you see them as they’re happening, you fix them.

Anne Milgram:

One other quick point, Preet, that it’s worth noting that the second-degree murder carries the potential sentence of up to 40 years. Third-degree is a potential sentence, as you said, up to 25 years and manslaughter is up to 10 years. So, there is a significant delta between those three charges. You’re talking about the differences being fairly significant.

Anne Milgram:

So, again, the jury won’t understand the sentencing ramifications, but in terms of understanding, the prosecutors want that option, the third-degree, because there’s potentially large sentence that would go with that. It’s obviously a murder conviction, not manslaughter. So, it’s more significant conviction. The defense would like to take out that middle option and force the jury to decide between, “Is that intentional, or is it basically manslaughter, or is it none of those?” So, again, it just is, I think, interesting for folks to think about this strategy that goes on behind this.

Preet Bharara:

Yeah, I mean, to bring home the point more about the applicability of murder in the third, look, I think there’s a very good chance to get murder in the second but how much the prosecutors probably feel that third-degree murder fits. I’ll just read to folks what is the potential instruction to the jury at the conclusion trial. This comes from another case in Minnesota. Jurors will probably be instructed along these lines. That you have murder in the third if Derek Chauvin’s intentional act was eminently dangerous to human beings and was performed without regard for human life.

Preet Bharara:

Jurors will also be told, “Such an act may not be specifically intended to cause death and may not be specifically directed at the particular person whose death occurred but is committed in a reckless and wanton manner with the knowledge that someone may be killed and with a heedless disregard of that happening.”

Preet Bharara:

I’m guessing the prosecutors are thinking, “The defense will loudly argue that even though Chauvin had his knee on the back of the neck of George Floyd and there were lots of signs that this could potentially cause George Floyd’s death, it’s not necessary to show that he intended the death. All that’s necessary is to show that he was doing this thing without regard for human life and he was reckless in doing so.” That’s just easier. That’s a charge that they have in the bag and they’d like to be able to have that one in the bag, right?

Anne Milgram:

Yes, I agree with that very much. As you have noted with murder in the second degree, you have to have the intent to effect the death of that person. I mean, we should talk just for one second about what the potential defenses are, because they’ve already, I think, shown that a bit in jury selection. But the way to think about second-degree is that what the defense will argue is that Officer Chauvin, he legitimately had the right to bring George Floyd to the ground. His intent was to bring him to the ground to subdue him, because he was resisting or whatever the officer will say. They’re going to argue his intent was not to murder George Floyd.

Anne Milgram:

I don’t know whether they’ll concede that the original intent was lawful to bring him to the ground. They’re going to argue that at some point during that nine plus minutes, the intent changed to murder. They’re going to have to address an issue that just doesn’t exist when you think about murder in the third degree. It’s different, the depraved mind and without regard for human life.

Anne Milgram:

The defense, just really quickly, I mean, the preview I think we’re seeing a little bit is this idea that Floyd had underlying conditions. We know that the officers believed that he was high. The toxicology lab came back with fentanyl. So, he had fentanyl in his system. The defense is going to argue that Officer Chauvin didn’t commit this murder that George Floyd died because of these other things. That’s going to be a part of the argument.

Preet Bharara:

So, they’re going to have an intense argument, depending on which charges they’re attacking at the particular moment. And then as you say, they’re going to have a causation argument that it wasn’t actually the knee in the back the cause the death. It was this other stuff and the narcotic in his system. They probably will be calling experts and others and that’ll be a fight at the trial.

Anne Milgram:

So, Preet, one of the other topics of conversation related to this murder trial that’s going forward is Bill Barr and that it’s been reported that when he was Attorney General, he rejected a guilty plea that had been negotiated by the city and state for Derek Chauvin to plead guilty and get a 10-year sentence on the charges. The defense wanted Barr’s agreement that the feds would not prosecute him, because of course, both state and federal prosecutions can take place. In most states, there’s no double jeopardy issue. What do you make of that?

Preet Bharara:

It might seem odd to people why the Attorney General the Department of Justice would be involved when you’re talking about a local prosecution, but as you point out, Derek Chauvin and his lawyers in situations like this want a global settlement. They want to know that they have repos, that they’re settling this once and for all with respect to a guilty plea and a term of imprisonment and not worry that the Justice Department will come in later as it is entitled to and charged much more serious crimes. It seems to me to be sensible to have turned that down so quickly after the events happened before a complete investigation was done.

Preet Bharara:

I think, to the extent the reporting says, Bill Barr was concerned about the perception. I think it’s correct. It would seem too quick. It would seem perhaps soft on Derek Chauvin in the moment. A fuller and fair investigation, I think, needed to be completed so people could consider which other charges, like were actually brought in this case, more serious, murder in the second degree notwithstanding the finality that you would have gotten and the certainty you would have gotten, which is an important consideration when you’re trying to hold people accountable and bring them to justice. Do you agree with that?

Anne Milgram:

I do agree with you. I do agree with you. I think the way you explained it is pitch perfect, because I think a lot of people would say, “Well, if the feds had agreed, they could have saved the family the pain. It would have been resolved.” But at the point that this conversation was taking place, there had not been a full investigation. The federal government again, they have the ability to investigate and potentially bring charges. I think most attorneys general would be wary of giving that away.

Anne Milgram:

Obviously, it’s worth noting Chauvin could have still pleaded guilty on the state charges, right? He still could have done that, taken the 10 years and then gone to the feds and said, “Please don’t prosecute me.” But what he was looking for was a global settlement to make sure that it was completely done.

Preet Bharara:

Right. It’s not the case that Bill Barr was necessarily saying no to the… It depends on how you phrase it. What the DOJ was probably saying is, “Knock yourselves out. Do whatever plea you want. We cannot commit at this early date before doing more to not going forward with our own charges. So, you’re going to have to take that risk,” which is different.

Anne Milgram:

By the way, a lot of people do take that risk. I think it’s different in such a high profile case like this. I think the calculation is different for a defense lawyer. Though, I will say that the Department of Justice traditionally has had a policy where they allow state and local prosecutors who go first and only bring federal cases if they think that the interest of justice haven’t been vindicated. We may get to see this. I suspect, Preet, just very quickly that if there was an acquittal in this case that the feds would potentially move forward. It’s been publicly reported. A grand jury has been impaneled for potential federal charges. There are federal civil rights charges that could be applicable here. So, I think, that’s certainly a part of what we could see.

Preet Bharara:

By the way, Anne, there are other things to talk about. I think we’ll get to them in the weeks to come. One is at Manhattan DA Cy Vance announced unsurprisingly that he’s not running for re-election. What does that mean for the investigation of Donald Trump and potential prosecution of Donald Trump?

Anne Milgram:

Preet, can I just say that there may have been people in the United States of America that were surprised by that announcement, but it wouldn’t be any of the CAFE Insider listeners, because we’ve been talking about that now for weeks.

Preet Bharara:

It would not be. And then there’s another development that we’ll talk about in the coming days and with respect to the death of Officer Sicknick on January 6th.

Anne Milgram:

Yes, charges were brought and I think there’s a lot for us to unpack in the coming weeks. Preet, I think before we close. We should cover another recent scandal that the media has not really significantly covered.

Preet Bharara:

That’s what we’re here for.

Anne Milgram:

One recent morning, cookbook author Julie Van Rosendaal noticed something peculiar about her breakfast. She lives in Canada. She was using Canadian butter and the Canadian butter that she’s spread on her waffles didn’t melt like normal.

Preet Bharara:

So apparently, she was eager to determine if something about her yellow spread had changed. So, she decided to conduct an experiment. She bought a dozen slabs of organic French and Canadian butter, laid them out on her counter, and pressed down on them with her index finger. The French and organic butter were soft, but most of the Canadian slabs were firm like clay. So, the mystery deepened.

Anne Milgram:

Yes. By the way, I think this may be something that would only happen during the pandemic, where you have a lot of time to do butter experiments at home, but she was eager to figure it out. So, she went to social media where you can often find answers. She wrote, “Have you noticed it’s no longer soft at room temperature?” She tweeted out, “Something is up with our butter supply. I’m going to get to the bottom of it.” So, she’s an investigator, Preet.

Preet Bharara:

Yeah, so she went to social media as a good investigator does. A lot of Canadian folks responded offering up their own theories. So, after she received a lot of tips, Miss Van Rosendaal, she figured out a hypothesis, which was to help meet the rise in demand for butter during the pandemic, the theory goes Canadian farmers were changing the diet of the cows to pump that base supplements.

Anne Milgram:

Yeah, that change had a consequence, unintended consequence, she theorized, which is that it basically changed the point at which butter melts. Basically, it made it harder to spread. So, her theory churned up a lot of controversy.

Preet Bharara:

Did you say churned up? Did you say churned up?

Anne Milgram:

I did.

Preet Bharara:

All right.

Anne Milgram:

Canadians everywhere expressed a mixture of fury and commiseration. One food analyst even dubbed the scandal ‘Buttergate’ and wrote, “The dairy industry is undermining the moral contract between the sector and Canadians, but the Canadian dairy industry knows what side their bread is buttered on-”

Preet Bharara:

Oh, come on.

Anne Milgram:

“… and was quick to respond to the allegations.” A lobbying group called Dairy Farmers of Canada launched an investigation and asked their members to consider alternatives to palm oil supplements.

Preet Bharara:

Still some other Canadian Twitter users found Buttergate to be more of a nothingburger. One user tweeted, “Butter too hard, first world problems.” I expect a special counsel will be appointed imminently.

Anne Milgram:

I feel like people are groaning at our butter jokes. I should give credit here. This great story came from a New York Times article by Dan Bilefsky. And then of course, the puns are our own and those of the CAFE Insider excellent team.

Preet Bharara:

By the way, I saw a movie called Butter this weekend about the sculpting of butter. It’s pretty good.

Anne Milgram:

If you could make any better sculpture, what would you sculpt?

Preet Bharara:

Obviously, I would sculpt a penguin for you, Anne. I’m good.

Anne Milgram:

You’re good.

Preet Bharara:

I’m good. So, we’ll be back next week to talk about all these stories that will continue to develop.

Anne Milgram:

Send us your questions and we’ll do our best to answer them.

Preet Bharara:

Send them to [email protected]

Anne Milgram:

Take care, Preet.

Preet Bharara:

See you, Anne.

Anne Milgram:

Bye.

Preet Bharara:

That’s it for this week’s CAFE Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Jennifer Korn, Geoff Isenman, Chris Boylan, Sean Walsh, and Margo Maley. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.