The attorney for convicted murderer Derek Chauvin filed Tuesday for a new trial on multiple grounds and asked for a hearing on jury misconduct, a day after a juror shown in a photo wearing Black Lives Matter clothing admitted attending a pre-trial march.
In his four-page motion, defense attorney Eric Nelson argued that the court “abused its discretion” by refusing to move the trial out of Minneapolis or sequester the jury, despite enormous publicity both before and after the high-profile trial last month in the death of George Floyd.
In addition, Mr. Nelson requested a “Schwartz hearing” to impeach the verdict on jury-related grounds, including juror misconduct, which could focus on whether juror Brandon Mitchell tainted the jury by failing to disclose his participation in an Aug. 28 rally in Washington.
The motion did not mention pictures of Mr. Mitchell that have surfaced, but “let’s face it, the only real reason he’s doing it is because of Mitchell. That’s the real reason,” said Joseph Tamburino, a criminal defense lawyer who served as an expert commentator on the trial for WCCO-TV, the Minneapolis CBS affiliate.
He called the motion “pretty strong,” particularly on the sequestration argument, and predicted that the judge would grant the request for the hearing on juror misconduct. Chauvin has not even been sentenced since his conviction.
“There’s no way the judge could deny this type of motion, and it’s a problem for the state,” Mr. Tamburino told The Washington Times.
Lawyer Ben Crump, who represents the Floyd family, had a succinct reaction. He tweeted: “No. No. No. Guilty. Guilty. Guilty.”
The anticipated defense challenge was filed after a jury found Chauvin, 45, guilty of second-degree murder, third-degree murder and manslaughter charges in an April 20 verdict.
The quick jury decision was credited with holding off another round of protests and rioting that besieged major U.S. cities last year after video showed Chauvin, responding to a call about a possible counterfeit bill passed at a local market, kneeling on Floyd’s neck or upper back for more than nine minutes.
At the same time, questions were raised about Hennepin County Judge Peter Cahill’s refusal to sequester the jury despite a series of high-profile news events related to the trial during the proceedings in Minneapolis.
They included the city’s $27 million settlement with the Floyd family, the police shooting of Daunte Wright in a nearby town, and the appearance of Rep. Maxine Waters, California Democrat, at a protest demanding a guilty verdict.
“The defense kept asking for full sequestration, and the judge kept denying it,” Mr. Tamburino said. “Then we had the shooting of Daunte Wright. Then we had congresswoman Maxine Waters. And the defense kept asking for full sequestration, and it kept being denied. That’s a strong argument.”
Legal experts said the defense’s case was strengthened by the revelation Monday that Mr. Mitchell, known as juror No. 52, wore a “Get Your Knee Off Our Necks” shirt and a “Black Lives Matter” hat, as shown in a photo posted in August on social media, possibly at a march in the District.
On the jury questionnaire, Mr. Mitchell said he answered “no” when asked whether he had “participated in protests about police use of force or police brutality.”
“I think they asked if I attended any protests for George Floyd or anything for police brutality. My answer was no because I hadn’t,” Mr. Mitchell told WCCO-TV. “This particular march was more so for voting, voter registration. Getting people out to get out and vote for the presidential election that was upcoming a couple months afterward. … This was the only thing I attended.”
The rally, which took place on the anniversary of the Rev. Martin Luther King Jr.’s “I Have a Dream” speech, was also billed by the National Action Network as the “Commitment March: Get Your Knee Off Our Necks,” and featured speeches by several Floyd siblings.
“It was also advertised as a protest against police use of force, specifically, ‘Get off our necks,’” Mr. Tamburino said. “He wore a T-shirt. There were Floyd family members speaking at that rally as well as people in support of the family for Jacob Blake and Breonna Taylor. So clearly he should have disclosed that. He didn’t.”
Mr. Mitchell said the rally was “100% not” a George Floyd protest, according to the Minneapolis Star-Tribune, despite news photos showing participants waving Black Lives Matter flags, wearing BLM T-shirts and toting signs saying, “I Can’t Breathe,” Floyd’s repeated plea to police before he died.
Robert Barnes, a defense lawyer who represents accused Kenosha, Wisconsin, gunman Kyle Rittenhouse, described the juror’s participation in the rally as “definitely a basis for both a mistrial and an appeal.”
“The legal question is: Was this an impartial jury? The secondary legal question is: Did the juror lie to hide his bias?” said Mr. Barnes, whose previous clients include actor Wesley Snipes, InfoWars host Alex Jones and eight students from Covington Catholic High School in Kentucky.
Mr. Barnes, who was not associated with the Chauvin trial, said in an email that Mr. Mitchell “had an obvious bias against the defendant, as the T-shirt reveals. No judge who cares about the constitutional right to an impartial jury could allow this verdict to stand.”
George Washington University Law School professor Jonathan Turley said the defense should be prepared to explain “why it did not perform a full internet search on prospective jurors.”
“I am not sure why the defense could not have located this picture on the internet, which may raise a collateral issue in any challenge,” he said in a Tuesday post on his website. “However, this is still a credible basis for further investigation and possible challenge.”
Judge Cahill denied a defense request for a mistrial after Ms. Waters drew headlines for showing up April 17 at the protests and telling reporters that protesters should “stay in the streets” and “get more confrontational” if Chauvin was acquitted of murder.
At the same time, the judge told attorneys that “congresswoman Waters may have given you something on appeal that may result in this whole trial being overturned.”
Chauvin is scheduled to appear in court for sentencing on June 25 and could receive 40 years in prison.
Mr. Mitchell, who has given multiple media interviews since the verdict, said he did not remember wearing the shirt and insisted that the march was “directly related to MLK’s March on Washington from the ’60s.”
“I’d never been to D.C.,” Mr. Mitchell said. “The opportunity to go to D.C., the opportunity to be around thousands and thousands of Black people — I just thought it was a good opportunity to be a part of something.”
Mr. Tamburino said the failure to disclose his attendance “deprived the defendant of his right to remove a potential juror.”
“Quite frankly, if the defense had known that this guy had a shirt on that said ‘Get your knee off our necks’ and was at this rally on Aug. 28, that’s huge,” Mr. Tamburino said. “He would have struck him.”
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