Prospective jurors have been instructed to come back Tuesday for what could be the start of jury selection . . . but I wouldn’t bet on it.
A cloud of uncertainty hangs over the first of the trials arising out of George Floyd’s death in Minneapolis police custody, the trial of former officer Derek Chauvin.
Jury selection was scheduled to get underway this morning. Judge Peter Cahill has postponed it until at least tomorrow, but the delay could be longer — maybe much longer.
As I outlined in this column on Sunday, the controversy stems from the third-degree murder charge, which is alleged under the “depraved indifference” homicide statute. It is one of three counts against Chauvin, the others being second-degree murder (i.e., unintentionally killing Floyd while in the course of committing another felony — criminal assault) and manslaughter (i.e., unintentionally killing Floyd through negligence that clearly created a lethal risk).
Judge Cahill threw out the third-degree murder charge in October, reasoning that it did not comport with Minnesota law and depraved indifference precedents. These, he opined, reserve the charge for reckless acts that create an indiscriminate risk of death or serious injury to everyone in the vicinity (e.g., shooting a gun into a crowd), not an act that targets a specific person — the prosecution’s theory in Chauvin’s case.
Nevertheless, the Minnesota Court of Appeals, in a sharply divided 2–1 panel decision, upheld a depraved indifference murder charge on this disputed theory in an unrelated case (against former officer Mohamed Noor). Based on the Noor precedent, Keith Ellison, Minnesota’s attorney general, sought to reinstate the third-degree murder charge against Chauvin. Judge Cahill refused — although he did not have a good reason for doing so. Last week, prosecutors persuaded the appellate court to direct Cahill to reinstate the charge. Meanwhile, Noor has appealed to the Minnesota Supreme Court. It will hear his appeal, but not until June.
Chauvin has not appealed to the state supreme court . . . yet. He will probably do so by tomorrow. Even an expedited appeal could take a month for the Supreme Court to resolve. This creates a limbo, particularly for the prosecution.
As a rule, an appeal to a higher court deprives the lower court of jurisdiction to act on the case. If Chauvin appeals, this calls into question the trial court’s authority to begin selecting a jury and make other rulings relevant to the trial, until the Supreme Court has resolved the question. Judge Cahill has suggested that the viability of the third-degree murder count is a narrow issue. In light of that, plus the facts that (a) both sides are ready to go to trial, (b) the state court system has undertaken the significant administrative burden of amassing a large venire from which to select a jury (because of immense pretrial publicity), and (c) it could take close to a month to pick a jury anyway, the judge would like to proceed with jury selection.
Cahill’s position is understandable, but it is not prudent. The lead trial prosecutor, Matthew Frank, rightly counters that the best course for now is to delay. Otherwise, if Chauvin were convicted, he could later claim that the jury was illegally selected — arguing that the trial court lacked jurisdiction and that it was not even clear to the defense at the time what charges would be tried. Prosecutors have also filed a petition in the Court of Appeals, seeking a formal ruling from that superior court regarding whether the trial judge has jurisdiction to act on the case while a challenge to the third-degree murder charge is pending.
There will be more legal wrangling today. Prospective jurors have been instructed to come back Tuesday for what could be the start of jury selection . . . but I wouldn’t bet on it.